<- Back to Gazettes

Gazette 6888

ORIGINAL PDF ↗

GOVERNMENT GAZETTE OF THE REPUBLIC OF NAMIBIA

N$31.80WINDHOEK - 29 April 2019No. 6888
CONTENTS PageCONTENTS PageCONTENTS Page
GENERALNOTICEGENERALNOTICEGENERALNOTICE
No. 104Communications Regulatory Authority of Namibia: Regulations Prescribing Procedures Regarding Application for, and Amendment, Renewal, Transfer and Cancellation of Spectrum Licences: Communications Act, 2009 ________________1
General NoticeGeneral NoticeGeneral Notice
No. 104No. 1042019
REGULATIONS PRESCRIBING PROCEDURES REGARDING APPLICATION FOR, AND AMENDMENT, RENEWAL, TRANSFER AND CANCELLATION OF SPECTRUM LICENCES: COMMUNICATIONS ACT, 2009REGULATIONS PRESCRIBING PROCEDURES REGARDING APPLICATION FOR, AND AMENDMENT, RENEWAL, TRANSFER AND CANCELLATION OF SPECTRUM LICENCES: COMMUNICATIONS ACT, 2009REGULATIONS PRESCRIBING PROCEDURES REGARDING APPLICATION FOR, AND AMENDMENT, RENEWAL, TRANSFER AND CANCELLATION OF SPECTRUM LICENCES: COMMUNICATIONS ACT, 2009
(a)makes the Regulations set out in the Schedule;makes the Regulations set out in the Schedule;
(b)amends the Regulations Regarding Licensing Procedures For Telecommunications and Broadcasting Service Licenses and Spectrum Use Licenses published under General Notice No. 272 of 29 August 2011;amends the Regulations Regarding Licensing Procedures For Telecommunications and Broadcasting Service Licenses and Spectrum Use Licenses published under General Notice No. 272 of 29 August 2011;
(c)repeals the Regulations Regarding License Exempt Spectrum published under General Notice No. 395 of 25 November 2011; andrepeals the Regulations Regarding License Exempt Spectrum published under General Notice No. 395 of 25 November 2011; and
(d)repeals the Regulations Setting Out License Conditions For Spectrum UseLicenses published under General Notice No. 469 of 2 December 2013.repeals the Regulations Setting Out License Conditions For Spectrum UseLicenses published under General Notice No. 469 of 2 December 2013.

F. KISHI
CHAIRPERSON OF THE BOARD

COMMUNICATIONS REGULATORY AUTHORITY OF NAMIBIA

SCHEDULE

ARRANGEMENT OF REGULATIONS

PART 1

INTRODUCTORY PROVISIONS

  1. Definitions
  2. Objects and application of Regulations
  3. Submission of documents to the Authority

PART 2

ADMINISTRATIVE SPECTRUM LICENSE

  1. Application procedure for right to use radio frequency spectrum
  2. Application to use spectrum together with service licence exempt telecommunications service categories

PART 3 SPECTRUM AUCTIONS

PART 4

DURATION, AMENDMENT, RENEWAL, TRANSFER AND CANCELLATION OF SPECTRUM LICENCES

  1. Duration of and conditions pertaining to spectrum license
  2. Amendment of spectrum license
  3. Renewal of spectrum license
  4. Transfer of spectrum license
  5. Refusal to issue or approve the transfer of a spectrum license
  6. Withdrawal and lapse of spectrum licence
  7. Procedures where licensee does not renew spectrum license or license lapses
  8. Material breaches of spectrum license
  9. Cancellation of spectrum licence

PART 5 EXEMPTIONS FROM OBLIGATION TO OBTAIN SPECTRUM LICENSE

  1. Categories of radio apparatus exempt from spectrum license

  2. Conditions of use of radio apparatus exempt from spectrum license

  3. Request to Bid

  4. Bidder qualification

  5. Disqualification of Bidder

  6. Notice of Bids received

  7. Award of Bid

  8. Regulatory actions

  9. Penalties

Definitions

  1. In these Regulations, any word or expression to which a meaning is assigned in the Act has that meaning, and -
  2. ‘Act’ means the Communications Act, 2009 (Act No. 8 of 2009);
  3. ‘applicant’ means a person applying for a spectrum license or for the amendment, renewal, transfer or withdrawal of a spectrum license;
  4. ‘Bid’ means the submission of the suite of documents required in terms of a Request to Bid;

‘Bidder’ means an applicant which has submitted a Bid following a Request to Bid;

PART 7

AMENDMENT OF REGULATIONS REGARDING LICENSING PROCEDURES FOR TELECOMMUNICATIONS AND BROADCASTING SERVICE LICENSES AND SPECTRUM USE LICENSES

  1. Definitions
  2. Amendment of title of the Regulations
  3. Amendment of regulation 3 of the Regulations
  4. Deletion of regulation 6 of the Regulations
  5. Transitional arrangements

PART 8 ENFORCEMENT

PART 9

GENERAL

  1. Oral hearings and call for written submissions
  2. Accounts
  3. Time frames for decisions
  4. Confidential information
  5. Record of proceedings
  6. Publication of licensing decisions and register of licenses
  7. Reporting, monitoring and compliance
  8. Reconsideration
  9. Condonation
  10. Ex parte communications

PART 1 INTRODUCTORY PROVISIONS

‘Regulations Prescribing Forms For Applications’ means the Regulations Prescribing Forms For Applications published under General Notice No. 328 of 19 August 2013;

‘Request to Bid’ means an invitation issued by CRAN to prospective Bidders to submit a Bid complying with the qualification criteria for a spectrum auction stipulated by regulation 7 ;

‘spectrum auction’ means the process whereby the Authority uses an auction system to sell the rights to use any radio frequency or group of radio frequencies or radio receiver over specific bands of the radio frequency spectrum as determined by the Frequency Band Plan and to assign scarce spectrum resources; and

‘spectrum license’ means a spectrum license conferring on the licensee the right to use any radio frequency or group of radio frequencies or radio receiver under the Frequency Band Plan.

Objects and application of Regulations

  1. (1) The objects of these Regulations are to-

Submission of documents to Authority

  1. Whenever documents are required to be delivered to the Authority, such documents must be delivered physically or electronically-

PART 2 ADMINISTRATIVE SPECTRUM LICENSE

Application procedure for right to use radio frequency spectrum

  1. (1) The Authority may from time to time in its sole discretion publish a notice in the Gazette notifying that a radio frequency spectrum band under the Frequency Band Plan as specified in the notice is open for application to be conferred on a first-come-first-served basis.

(5) The Authority may, after receiving an application referred to in subregulation (2), request the applicant by written notice to provide it with additional information reasonably required by the Authority in considering the application, which the applicant must provide to the Authority within a reasonable period specified by the Authority in that notice.

(6) The aforesaid application must be accompanied by any fee payable in terms of the Regulations Setting Out Fees For Spectrum Licenses, Certificates and Examinations.

(7) The Authority must forthwith publish a notice of the aforesaid application in the Gazette and invite the public to may make written comments to the Authority within the time set out in the notice, which time may not be less than 14 days from the date of the publication.

(8) The Authority will provide the opportunity to an applicant to respond to any written comments contemplated in subregulation (7)

(9) An applicant’s response to public comments must be submitted in writing to the Authority within the time set out by the Authority, which time may be not less than 14 days from the deadline for the submission of public comments or if the notice for submissions of responses is published in a subsequent Gazette , not less than 14 days from the date of that publication.

(11) The Authority may consider written submissions not timeously filed if, in its opinion, it is practical to do so.

(12) The Authority may request further written submissions, such as for further information or clarification, which must be provided to the Authority in the time and the manner set out by the Authority.

(15) If the Authority grants the license the Authority must issue to the applicant a spectrum license in the form determined and subject to the conditions imposed by the Authority.

(16) The Authority must whether requested by an applicant or not, furnish reasons to the applicant for its decision to grant a spectrum license.

Application to use spectrum together with service licence exempt telecommunications service categories

  1. (1) The following telecommunications services categories may be provided without a licence in terms of the Act:

PART 3 SPECTRUM AUCTIONS

Request to Bid

  1. (1) The Authority may from time to time in its sole discretion publish by notice in the Gazette a notification that a radio frequency spectrum band under the Frequency Band Plan, as specified in the notice is to be conferred on a competitive basis by means of a spectrum auction, provided that -

(4) The Authority must in accordance with the spectrum auction rules referred to in subregulation (3)(k) determine the reserve price applicable to each spectrum block intended to be auctioned as well as the auction method to be followed.

(5) In determining the radio frequency spectrum band under the Frequency Band Plan, which is to be conferred on a competitive basis by means of a spectrum auction, the Authority must consider and stipulate in the Request for Bids -

Bidder qualification

  1. (1) The Authority will permit only those Bidders who meet the qualification criteria referred to in subregulation (2) to participate in the bid award process.

Disqualification of Bidder

  1. A Bidder will be disqualified from the bidding process where such Bidder -

Notice of Bids received

  1. Once all Bids are received in accordance with a Request to Bid, the Authority must publish a notice in the Gazette and one newspaper with national circulation -

Award of Bid

  1. (1) The Authority must, following a spectrum auction consequent to a Request to Bid and after having followed the procedures set out in regulation 4(6) to (13) notify any successful bidder and specify in such notice -

PART 4 DURATION, AMENDMENT, RENEWAL, TRANSFER AND CANCELLATION OF SPECTRUM LICENCES

Duration of and conditions pertaining to spectrum license

  1. (1) A spectrum license issued under-

Amendment of spectrum license

  1. (1) A licensee may apply to the Authority for amendment of that licensee’s spectrum licence.

(2) An application referred to in subregulation (1) must be made on a form that substantially corresponds to Form CRAN 7 set out in the Regulations Prescribing Forms For Applications.

(3) Notwithstanding subregulation (1), any changes to a licensee’s name and details of contact persons do not require prior approval from the Authority, provided the ownership of the licensee is not affected by such change to the licensee’s name, but the Authority must be notified in writing of the impending change at least 14 days prior to the effective date.

(5) An application referred to in subregulation (1) must be accompanied by any fee payable in terms of the Regulations Setting Out Fees For Spectrum Licenses, Certificates and Examinations.

Renewal of spectrum license

  1. (1) A licensee to whom a spectrum license has been issued in terms of Part 3 and that also holds a telecommunications or broadcasting licence may upon the expiry of the spectrum license apply to the Authority for renewal of that licensee’s spectrum licence.

(7) An application referred to in subregulation (1) must be accompanied by any fee payable in terms of the Regulations Setting Out Fees For Spectrum Licenses, Certificates and Examinations.

(8) The Authority may, when considering an application for the renewal of a spectrum licence in terms of subregulation (1), require any additional information as it deems necessary to make a finding.

Transfer of spectrum license

  1. (1) A spectrum license must be used solely by the holder thereof and such license or the control thereof is only transferable to another person with the prior approval of the Authority upon application for such transfer by such other person.

(2) An application for the transfer of a licence or control of a licence must be made on a form that substantially corresponds to Form CRAN 6 set out in the Regulations Prescribing Forms For Applications.

Refusal to issue or approve the transfer of a spectrum license

  1. (1) If the Authority intends to refuse to issue or approve the transfer of a spectrum license, the Authority must inform the applicant of the reasons for such intended refusal and invite the applicant to make written submissions on why such issue or transfer should not be refused.

Withdrawal and lapse of spectrum licence

  1. (1) If a licensee intends to permanently discontinue providing the services for which the spectrum license was issued, it must request the Authority to withdraw its licence by submitting to the Authority an application on a form that substantially corresponds to Form CRAN 9 set out in the Regulations Prescribing Forms For Applications.

Procedures where licensee does not renew spectrum license or license lapses

  1. (1) In the event that a licensee failed to renew a spectrum license or that license lapses and the licensee continues to use the radio frequency spectrum after the end of that licensee’s

license year, the Authority must prior to seizing or sealing radio apparatus or equipment used in rendering the services related to the license-

(2) If after considering any written representations made in terms of subregulation (1) (a)(iv), the Authority’s decision in terms of subregulation (1)(b) is that the person concerned is unlawfully making use of radio frequency spectrum, then such person must -

(3) Failure by the affected person to comply with subregulations (1)(a) and (2) will cause the Authority to seize and seal any radio apparatus or equipment used by such person and instituting enforcement proceedings in terms of the Act and these Regulations.

Material breaches of spectrum license

  1. (1) Without limiting any other grounds on which the Authority may cancel a spectrum licence in terms of the Act, the following events, whether specified as a licence condition or not, constitute material breaches of a spectrum licence by a licensee justifying the cancellation or suspension of the licence concerned:

Cancellation of spectrum licence

  1. (1) If the Authority is satisfied that a licensee has in terms of regulation 18 committed a material breach of its spectrum license the Authority may be written notice to that licensee inform the licensee that the Authority intends to cancel such spectrum licence and in such notice state the grounds for such intended action.

PART 5 EXEMPTIONS FROM OBLIGATION TO OBTAIN SPECTRUM LICENSE

Categories of radio apparatus exempt from spectrum license

  1. The use and possession of the categories of radio apparatus set out in Annexure B do not require a spectrum licence in Namibia, provided that the conditions imposed on those categories radio apparatus are adhered to.

Conditions of use of radio apparatus exempt from spectrum license

  1. (1) The use and possession of the categories of radio apparatus set out in column B of the table included in Annexure B , must be in accordance with the frequencies, limitations, specifications and standards set out in columns A, C, D, and E of the table.

PART 7 AMENDMENT OF REGULATIONS REGARDING LICENSING PROCEDURES FOR TELECOMMUNICATIONS AND BROADCASTING SERVICE LICENSES AND SPECTRUM USE LICENSES

Definitions

  1. For purposes of this Part, ‘the Regulations’ means the Regulations Regarding Licensing Procedures For Telecommunications and Broadcasting Service Licenses and Spectrum Use Licenses published under General Notice No. 272 of 29 August 2011.

Amendment of title of the Regulations

  1. The Regulations are amended by -

‘Regulations Regarding Licensing Procedures For Telecommunications and Broadcasting Service Licenses’;

Amendment of regulation 3 of the Regulations

  1. Regulation 3 of the Regulations is amended by the deletion of subregulation (3).

Deletion of regulation 6 of the Regulations

  1. Regulation 6 of the Regulations are deleted.

Transitional arrangements

  1. (1) Any spectrum license issued to a licensee in terms of the Regulations prior to the commencement of these Regulations is deemed to be issued in terms of these Regulations, subject to all conditions attached to such license.

PART 8 ENFORCEMENT

Regulatory actions

  1. (1) The Authority may exercise any of the powers conferred upon it in terms of the Act for ensuring compliance of these Regulations.

Penalties

  1. (1) Any licensee that fails to submit information or adhere to any regulation, is guilty of contravening these regulations.

PART 9 GENERAL

Oral hearings and call for written submissions

  1. (1) If the Authority considers it necessary or appropriate, it may hear oral submissions in respect of any application made in terms of these regulations.

Accounts

  1. A licensee must comply with the such cost accounting procedures and reporting as the Authority may from time to time direct in writing.

Time frames for decisions

  1. (1) If any applicant does not provide all of the information required by these Regulations in the time provided, the Authority may refuse to issue a spectrum license or approve the transfer of such license.

Confidential information

  1. If a person has designated information or documentation submitted to the Authority as confidential, the provisions of section 28 of the Act apply.

Record of proceedings

  1. All documents deemed relevant by the Authority for purposes of any license application proceedings contemplated by the Act and these Regulations must be maintained by the Authority separately for each application proceeding in files located at the head office of the Authority and if practicable, may be uploaded on the Authority’s website.

Publication of licensing decisions and register of licenses

  1. (1) All decisions made in terms of these Regulations and the relevant provisions of the Act must be communicated to applicants and licensees and other relevant parties in writing, and may be published in the Gazette .

Reporting, monitoring and compliance

  1. (1) The Authority may, in the format determined by the Authority, request information from licensees which is reasonably necessary to enable the Authority to discharge its functions and duties and to monitor and ensure compliance with the Act and these Regulations.

(3) When requesting information in terms of this regulation, the Authority must provide a detailed specification of such request together with the deadline for the response and identify a contact person to whom queries may be directed.

(4) All licensees must submit bi-annual reports to the Authority in July of each year for the period 1 January to 30 June and in January the next year for the period 1 July to 31 December of the preceding year, relating to -

Reconsideration

  1. (1) The Authority may in terms of section 31 of the Act reconsider any decision or order made in terms of these Regulations, within 90 calendar days from the date of making that decision or issuing that order.

Condonation

  1. (1) In the event that any party is unable to comply with any timeframe set out in these Regulations, it may request from the Authority an extension of time at least 14 days prior to the deadline set out or within such other timeframe agreed by the Authority upon good cause shown.

Ex parte communications
38. A person may not communicate with the members of the Board,
THE chief executive officer
or any staff member of, or consultant of the Authority, to discuss the subject matter of an application pending in terms of these Regulations, except as provided for herein

ANNEXURE A

FORM 1

RECONSIDERATION FORM (REGULATION 36(2))

In terms of regulation 36(2) of the Regulations Prescribing Procedures Regarding Application For, And Amendment, Renewal Or Transfer Of Spectrum Licences, applications for reconsideration must be submitted on this form within thirty (30) days from date of receipt of the Authority’s decision.

A. APPLICANT

APPLICANT:

Physical Address: ________________________________________________________________

Postal Address: __________________________________________________________________

Telephone number(s): ____________________________________________________________

Facsimile number(s): _____________________________________________________________

Electronic mail address(es): ________________________________________________________

B. CONTACT PERSON (IF DIFFERENT FROM APPLICANT)

Contact Person: _________________________________________________________________

Physical Address: ________________________________________________________________

Postal Address: __________________________________________________________________

Telephone number(s): ____________________________________________________________

Facsimile number(s): _____________________________________________________________

Electronic mail address(es): ________________________________________________________

C. RESPONDENT

Respondent: ____________________________________________________________________

Contact Person: _________________________________________________________________

Physical Address: ________________________________________________________________

Postal Address: __________________________________________________________________

Telephone number(s): ____________________________________________________________

Facsimile number(s): _____________________________________________________________

Electronic mail address(es): ________________________________________________________

D. SUMMARY OF GROUNDS FOR RECONSIDERATION

Provide an accurate and concise statement of the grounds illustrating why the Authority should reconsider its decision.

E. RELIEF SOUGHT

Provide a clear and concise statement of the specific relief or remedy sought.

F. LIST OF DOCUMENTS SUPPORTING REQUEST FOR RECONSIDERATION

Provide a detailed list of the documents you wish to use in support of your request for reconsideration. Please further ensure that the listed documents are attached to this form.

G. ANY OTHER INFORMATION

Provide any other relevant information.

Signed by _____________________________ at __________________________ in his/her/its capacity as _____________________________, duly authorised and warranting such authority and warranting that the information provided herein is true and correct, on the ______________ day of___________, 20 ___.

Signature

ACKNOWLEDGEMENT OF RECEIPT BY CRAN:

  1. Name:

  2. Date:

  3. Place:

  4. Signature:

Explanation:

  1. The use or possession of the radio apparatus listed in Column B below, in accordance with the specifications listed in Columns A, C, D and E of the Table below does not require a spectrum license.
  2. Use and possession of all radio apparatus exempt in terms of the above table must comply with the following:
  3. 2.1. All radio apparatus must be type-approved by the Authority or by the Independent Communications Authority of South Africa or, upon request to the Authority, by any other regulatory authority in a country other than Namibia or South Africa.
  4. 2.2. The frequencies, transmitting power and external high-gain antenna of the radio apparatus must not be altered without a new type-approved certificate issued by the Authority or any other regulatory authority referred to in paragraph 2.1.
  5. 2.3. The radio apparatus must be operated within, and not exceed, the technical parameters set out in each of the applicable Columns C and D of the Table with respect to the frequency band, maximum radiated power or field strength limits and channel spacing, relevant standards and duty cycles and antennas to be used and contained in Column E.
  6. 2.4. The antenna of the radio apparatus must not be higher or above average ground level than the lowest point of the place where the radio apparatus operates effectively.
  7. 2.5. The radio apparatus may not cause interference with any licensed radio frequency spectrum.
  8. 2.6. The user of the radio apparatus in the license-exempt frequency spectrum operates on a non-interference and zero protection basis from interference.

ANNEXURE B

RADIO APPARAUS EXEMPT FROM SPECTRUM LICENSE

58
59 6.765-6.795M Inductive loop 42 dBuA/m @ 10 m. EN 300 330 CEPT/ERC/REC 70-03 system No restrictions on EN 301 489-1,3 duty cycle EN 60950 No channel spacing. 13.553- Inductive loop 42 dBμA/m @ 10 m. EN 300 330 CEPT/ERC/REC 70-03 13.567M system, including No restrictions on EN 301 489-1,3 RFID duty cycle ASK,FSK,&PSK EN 60950 No channel spacing. 13.553- RFID and 60 dBμA/m @ 10 m. EN 300 330 CEPT/ERC/REC 70-03 13.567M EAS systems only EN 301 489-1,3 EN 60950 26.957- Inductive loop 42 dBμA/m @ 10 m. EN 300 330 CEPT/ERC/REC 70-03 27.283M system No restrictions on EN 301 489-1,3 duty cycle EN 60950 No channel spacing. 26.957- Non-specific 10 mW ERP EN 300 220 CEPT/ERC/REC 70-03 27.283M SRDs No restrictions on EN 301 489-1,3 duty cycle. EN 60950 No channel spacing. 26.995; Surface model 100 mW ERP EN 300 220 CEPT/ERC/REC 70-03 27.045; control 27.095; No restrictions on EN 301 489-1,3 27,145; duty cycle. 27.195M EN 60950 10 kHz channel spacing. 35.00- Aircraft model 100 mW ERP EN 300 220 CEPT/ERC/REC 70-03 35.25M control No restrictions on EN 301 489-1,3 duty cycle. EN 60950 10 kHz channel spacing. 36.65- Wireless 100 mW ERP EN 300 422 CEPT/ERC/REC 70-03 36.75M microphones 100% duty cycle EN 301 489-9 No channel spacing. EN 60950 40.65- Wireless 100 mW ERP EN 300 422 CEPT/ERC/REC 70-03 40.70M microphones 100% duty cycle EN 301 489-9 No channel spacing. EN 60950
60
62
63 433.04- Non-specific 100 mW ERP EN 300 220 CEPT/ERC/REC 70-03 434.79M SRDs No duty cycle EN 301 489-3 restriction EN 60950 No channel spacing 446-446.1 M|Public mobile 500mW EN 300 296 Includes the radio (PMR) following 12,5 kHz channel EN 301 489-5 eight spacing channels. EN 60950 446.00625M; 446.01875M; 446.03125M; 446.04375M; 446.05625M; 446.06875M; 446.08125M; 446.09375M; 464.5375M Security 1W EN 300 296 systems 25 kHz channel EN 301 489-5 spacing. EN60950 464.500- Non-specific 100mW EN 300 220 464.5875 SRDs No channel spacing EN 301 489-3 EN 60950 463.975M; Low power 500 mW. EN 300 296 464.125M; radio 464.175M; 12.5kHz channel EN 301 489-5 464.325M; spacing EN 60950 464.375M; 863-865M Wireless audio 10 mW ERP EN 300 357 CEPT/ERC/REC70-03 systems 100 % duty cycle. EN 301 489-9 CEPT/ERC/DEC (01)18 No channel spacing. EN 60950 863-865M Wireless 10 mW ERP EN 300 422 CEPT/ERC/REC 70-03 microphones 100 % duty cycle. EN 301 489-9 No channel spacing. EN 60950
64
65 868.6- Alarms 10 mWERP EN 300 220 CEPT/ERC/REC 70-03 868.7M < 1 % duty cycle. EN 301 489-1,3 CEPT/ERC/REC (01) 25 kHz channel 09 spacing. EN 60950 868.7- Non-specific 25 mW ERP EN 300 220 CEPT/ERC/REC 70-03 869.2M SRDs < 0.1 % duty cycle or EN 301 489-1,3 CEPT/ERC/REC (01) LBT. 04 EN 60950 No channel spacing. 869.25- Alarms 10 mWERP EN 300 220 CEPT/ERC/REC70-03 869.3M < 0.1 % duty cycle. EN 301 489-1,3 25 kHz channel EN 60950 spacing. 869.4- Non-specific 500 mWERP EN 300 220 CEPT/ERC/REC70-03 869.65M SRDs, including < 10% duty cycle or EN 301 489-1,3 RFID LBT. EN 60950 25 kHz channel spacing. 869.65- Alarms 25 mW ERP EN 300 220 CEPT/ERC/REC70-03 869.7M 10 % duty cycle. EN 301 489-1,3 25 kHz channel EN 60950 spacing. 869.7- 870 Non-specific 5mWERP EN 300 220 CEPT/ERC/REC 70-03 M SRDs 100% duty cycle. EN 301 489-1,3 No channel spacing. EN 60950 915.1 -915.2 Real time 25 mWERP EN 300 086 M location systems EN 301 489-1,3 (RTLS) EN 60950 915.2-915.4 Passive tags 100 mW ERP M 10 x 20 kHz wide channels
66 915.4-919 M Modulating 4 W e.i.r.p. FCC CFR 47 Part 200 kHz channel RFID systems 15.247 spacing (FHSS) CISPR 16 EN 60950 919 -919.2 M Tag backscatter systems Guard band 919.2-921 Non- 4 W e.i.r.p.; CW only Spectral masks as in M modulating @ 920 MHz (± 1.5 EN 302 208-2 backscatter kHz frequency RFID systems stability) EN 301 489 -1,3 EN 60950 1880 - DECT 250 mW e.i.r.p. EN 300 406 1900M cordless (peak). phones EN 301 489-1,6 1.728 MHz channel spacing. EN 60950 The Authority TE 001 2400- Non-specific 10 mW e.i.r.p. EN 300 440 CEPT/ERC/REC70-03 2483.5M SRDs No duty cycle. EN 301 489-1,3 EN 60950 No channel spacing. 2400 - Wideband 100 mW e.i.r.p. EN 300 328 CEPT/ERC/REC70-03 2483.5M wireless For wide band systems No duty cycle. EN 301 489 -1,3 modulationsother than FHSS, the maximum WLAN No channel spacing. EN 60950 e.i.r.p. density is limited to 10 mW/MHz Wideband data For wide band transmission modulations other applications than FHSS, the (WBDTS) maximum e.i.r.p. density is limited to Model control 10 mW/MHz. Adequate spectrum sharing mechanisms shall beimplemented by the equipment (e.g. Listen-before- Talk, Detect-and- Avoid)
67
69
70 9500- FDDA 25 mW e.i.r.p. EN 300 440 CEPT/ERC/REC 70-03 9975M No duty cycle EN 301 489-1,3 restriction. EN 60950 No channel spacing. 10.025 - Low power 1W e.i.r.p. ETS 300 440 10.145 G video surveillance 8MHz channel spacing, with first channel on 10.029 GHz. 10.5 -10.6G FDDA 500 mW e.i.r.p. EN 300 440 CEPT/ERC/REC 70-03 No duty cycle EN 301 489-1,3 restriction. EN 60950 No channel spacing. 13.4 -14G FDDA 25 mW e.i.r.p. EN 300 440 CEPT/ERC/REC70-03 No duty cycle EN 301 489-1,3 restriction. EN 60950 No channel spacing. 17.1-17.3G HiperLAN 100 mW e.i.r.p. EN 301 489-1,3 EN 60950 24.00- Non-specific 100 mW e.i.r.p. EN 300 440 CEPT/ERC/REC70-03 24.25G SRDs No duty cycle EN 301 489-1,3 restriction. EN 60950 No channel spacing. 24.05- FDDA 100 mW e.i.r.p. EN 300 440 CEPT/ERC/REC70-03 24.25G No duty cycle EN 301 489-1,3 restriction. EN 60950 No channel spacing. 57-64G Point-to-point 55 dBm e.i.r.p. EN 305550 The maximum links transmitteroutputpower is 10 dBm.The minimum antenna gain is 30 dBi
57 -66GMulti-gigabit wireless systems (MGWS)40 dBm e.i.r.p.EN 302 567The use of these systems is as described in ITU-R Report ITU-R M.2227 and Recommendation ITU-R M.2003. Fixed outdoor installations are not allowed.
76-77GRTTT radar55 dBm peak No duty cycle restriction No channel spacingEN 300 091 EN 301 489-1,3 EN 60950CEPT/ERC/REC 70-03

ANNEXURE A

SUMMARY OF COMMENTS RECEIVED IN RESPECT OF GOVERNMENT GAZETTE NO. 6802, GENERAL NOTICE NO. 695 DATED 27 DECEMBER 2018

1. Multichoice Namibia (Pty) Ltd

Multichoice Namibia (Pty) Ltd’s submission submitted to the Authority on 11 February 2011 refers.

No.CommentResponse
1SPECTRUMAUCTIONS Part 3 of the draft Regulations introduces spectrum auctions. It does not however, indicate the circumstances in which the Authority will assign spectrum by means of an auction. We understand that the Authority envisages auctions only for assigning high value and high demand spectrum, since the auction model is usually adopted in respect of scarce, high demand spectrum. As indicated in the Authority’s draft Spectrum Assignment Strategy, the spectrum acution (flexible rights of use) model is mostly adopted when the demand for spectrum is higher than the amount of spectrum resources available. We are concerned that the basis on which the Authority will determine that spectrum licensing will be subject to auction is not included in the draft Regulations, thus creating an uncertain licensing environment, which we believe is not in the interest of the development of the sector. The draft Regulations should indicate that the Authority maydecide to assign spectrum by means of an auction when the demand for particular spectrum is higher than the amount of spectrum resources available. We are also concerned that, in terms of Reg. 6(1), the decision whether to follow an auction process is in the Authority’s sole discretion. In addition, the Authority’s decision to adopt an auction process in respect of particular spectrum should follow a public process and a spectrum audit, to determine whether particular spectrum is indeed scarce, high demand spectrumThe Authority is mandated with the management, control and planning of spectrum as per section 99 of the Act and thus full oversight of the availability of spectrum and deman for spectrum in various spectrum and thus method of assignment is at the discretion of the Authority. The proposal by Multichoice is therefore not accepted.
We propose that the Authority amend Reg. 6(1) to read as follows- ‘The Authority may from time to time, followinga public consultation process and, if necessary a spectrum audit , publish by notice in the Gazette a notification that a radio frequency band under the Frequency Band Plan, which the Authority has determined to be scarce and in high demand, as specfied in the notice is to be conferred on a competitive basis by means of a spectrum auction, provided that no radio frequency spectrum to be used in accordance with regulation 5 may be subject to a spectrum auction.‘
2ADMINISTRATIVE SPECTRUM LICENCE APPLICATIONS The draft Regulations provide that the Authority must publish a notice that spectrum is open to be conferred on a first-come-first-served basis (Reg. 4(1)) or on a competitive basis by means of a spectrum auctin (Reg. 6(2)). Since spectrum auctions should be limited to assigning only scarce, high demand spectrum, we assume that spectrum auctions will be the exception and not the rule. TheAuthority’s default positions should therefore be that spectrum is to be conferred on a first-come-first-served basis, unless a spectrum auctions notice is issued in respect of particular spectrum. This would reduce the administrative burden on the Authority, relieving it of the obligation to publish notices in the Gazette in respect of the default position. It would also allow operatorss to apply for spectrum as and when it is required, wich would contribute to an enabling environment that is responsive to te needs of operators, and avoid unnecessary bottlenecks in respect of routine spectrum applications In order to makeadministrative spectrum licensing the default position, we propose replacing Reg. 4(1) with the following: Unless the Authority has published a notice in the Gazette in terms of regulation 6 notifying that a radio frequency spectrum band under the Frequency Band Plan as specified in the notice is to be conferred on a competitive basis by menas of a spectrum auction, spectrum is open for application to be conferred on a first-come-first- served basis in accordance with Part 2 of these Regulations.The Authority is of the opinion that the proposal by Multichoice is already provided for in Regulation 6 (1) making provisions that spectrum auctions only take place where there is a high demand and where spectrum has high market value. There is thus no need to amend Regulation 4(1).
3INFORMATION REQUIRED FOR SPECTRUM LICENCEAPPLICATIONS
In terms of Reg. 4(4), a spectrum application must include, amongst other things, full ownership interest, including foreign ownership interest, a certificate of incorporation, a detailed statement of the expertise and experience of te applicant, including evidence of its financial and human resources and a description of its key personnel (including their CVs), and any other information required by the Authority. We are concerned that these requirements are extremely broad and unnecessay in circumstance where an applicant already holds a service licence in respect of which the frequency spectrum is intended to be used. Such an applicant is already known to the Authority and has met the criteria for the granting of that service licence. The requirement to include all of this informatin would create an unduly burdensome application process, which is not in the interest of the Authority or the applicants. We suggest that this be addressed by amending Reg. 4(4) to specify that the information listed in paragraphs (c), (d), (e) and (g) is required to be provided by applicants who do not already hold a service licence in respect of which the spectrum is intended to be used. Reg 4(4)(h) provides that the application must include ‘any other information required by the Authority’ . This requirement is vague, in that it does not specify what type of other information the Authority may require, nor that the informaton must be relevant. Moreover, unless an applications is made pursuant to a specific invitation to apply, an application would not be in a position to know, when applyinh for the spectrum, which other information mights be required by the Authority. An applicant can therefore not be expected to provide other information which has not been requested/required by the Authority in advance of the application. In order to esure that the Authority is provided with appropriate and relevant information, and that it is clear to applicants up front what will be expected of them, we propose that any other information required by the Authority must be requested by the Authority within a specified reasonable period and must be relevant for the purposes of the spectrum application. We suggest that this can be achieve by amending Reg. 4 (4)(h) to reads as follows:The Authority has considered the comments as submitted and deleted draft regulation 4(4)(g) in respect of submissions of financial and human resources together with CVs . The remainder of the draft regulation has been retained as is.
‘any other relevant information required by the Authority for the purposes of the application or that the applicant believes might be relevant to the Authority in considering the application.’ We also suggest adding a new regulation after Reg. 4(4) which provides: ‘After receiving an application, the Authority may request the applicant to provide it with additional information reasonbly required by the Authority in considering the application, which the applicant shall prvide to the Authority within a reasonable time period specified by the Authority.‘
4APPLICANT SHOULD HAVE RIGHT TO REPLY TO COMMENTS MADE ON ITS APPLICATION In terms of Reg 4(6), the Authority will provide an applicant with an opportunity to respond to any public comments ‘if the Authority considers it necessary’ . This could unfairly disadvantage applicants, who would not necessarily be afforded an opportunity to respond to all comments made in respect of their applicaions. In the interests of due process and fair procedure, an applicant should be afforded, as a right, an opportunity to respond to all comments made in respect of its application. We therefore propose amending Reg. 4(6) to read as follows: ‘The Authority will provide the opportunity to the applicant to respond to any public commentsThe Authority has considered the comments as submitted and inserted a new regulations 4(5) that reads as follows- ‘The Authority may, after receiving an application referred to in subregulation (2), request the applicant by written notice to provide it with additional information reasonably required by the Authority in considering the application, which the applicant must provide to the Authority within a reasonable period specified by the Authority in that notice. ‘
5SPECTRUM AUCTION BIDDER QUALIFICATIONS Existing licensees should not be disqualified from bidding Reg 7 (1)(c) provides that a Bidder comprising a consortium that includes an existing licensee will not meet the qualification criteria to participate in a bid award process. It is not clearwhy a Bidder comprising consortium that includes an existing licensee should be ineligible to partipate. We are of the view that merely including a member which is an existing licensee should not disqualify a consortium from participation in the bid award process. To the extent that there are other material or substantive grounds for disqualifying persons from being members of a consortium, such as ensuring that persons not able to bid on multiple lots through different consortia, we suggest that the draft Regulations prescribe these grounds. TheThe Authority has considered the comments as submited and amended (i)Regulation 7(1)(c)as follows- ‘subject to paragraphs (d) and (e) a Bidder may comprise a consortium which may include the holder of a telecommunications service license or broadcasting license or comprise the holders of telecommunications service licenses or broadcasting licenses or a combination of such licensees;’ (ii) Regulation 8(h) as follows ‘failed to comply with a request by the Authority relating to a material aspect of the Bid.‘
Authority may wish to consider inserting wording into the draft Regulations which specifies that a person may bid only nce in an auction on its own or as part of a consortium. Failure to comply with the Authority’s request relating to the Bid Reg.8(h)providesthataBidderwillbedisqualified where that Bidder failed to comply with a request by the Authority relating to the bid. Disqualification is a significant penalty, and ougt only to apply where the failure to comply relates to a material request, and where there are no reasonable grounds for a Bidder’s failure to comply with the request. We therefore suggest the Reg. 8 (h) be reworded to read- ’ failed to comply with a material request by the Authority relating to the bid if there is no reasonable basis for such failure.‘
6RENEWALOF SPECTRUM LICENCES We support the automatic renewal of spectrum licences, as a compliant licensee should have the expectation that it will continue to be able to use the relevant spectrum. Broadcasting licensees in particular roll out their networks and provide their broadcasting services in reliance on particular spectrum, and they should be entitles to continue to do so as long as they haven’t materially failed to comply with their applicable licence conditions. We therefore support the automatic renewal of the spectrum licence, subject to payment of the applicable fees. Reg. 16(4)(c) provides that a spectrum licences lapses automatically if a renewal fee is not paid. Reg. 17 sets out the applicable procedures fro when a licence lapses. Given the availability of other, less restrictive means by which to ensure timeous payment of licence fees, such as sending reminder notices to licensees, allowing for a limited grace period for payment, and the charging of interest on outstanding fees, we are concerned that automatic lapsing in all instances of failure to pay a licence renewal fee timeously is a harsh consequence that may not be appropriate to all instances of late payment. Delays in payments due to, for example, technical reasons or bona fide error, ought not to attract the same penalty as wilful failure to pay a renewal fee.The Authority has considered the comments as submitted and inserted regulation 16(5) that reads as follows- ‘Notwithstanding subregulation (4)(c), the Authority may, upon good cause shown, condone the late payment of the applicable fees payable in terms of that subregulation, in which event the spectrum license will subject to regulation 11(1)(a) continue to be valid.‘
We therefore propose that the draft Regulations provide for automatic lapsing after the expiry of the grace period, or for the charging of interest at the prevailing rate on outstandig fees for a limited period, after which the spectrum licence would lapse. Wesuggest that theAuthority considers addressing this by insertig a new Reg. 16(5) to read as follows ‘The Authority may, upon good cause shown, condone the late payment of the spectrum renewal fees payable in terms of regulation 16 (4)(c), in which event the spectrum licence will continue to be a valid force and effect and shall be renewed for another term.‘
7WITHDRAWALOF SPECTRUM LICENCE Reg. 16 introduces various requirement to be met when a spectrum licensee intends to permanently discontinue the services for which the spectrum licence was issued. Reg. 16 (2)(f) requires the spectrum withdrawal application to contain a migration plan for any customer of the licensee that may be affected by the withdrawal of the spectrum licence, an analyis of the impact of such withdrawal on such affected customers, and a communication plan to affected customers. Reg 16(3)(c) empowers the Authority to impose conditions on the licensee with respect to migration of customers and end-users. These requirements relate to the discontinuation of the service in respect of which the spectrum licence was issued, rather than to te withdrawal of the spectrum per se . Since this relates to the discontinuation of the service, the spectrum witdrawal is incidental, and may in fact be irrelevant. These requirements may not always be necessary. For example, a migration plan, as contemplated in Reg. 16(f), might be appropriate when a service is discontinued, but not if spectrum is surrendered which does not affect the provision of the service or the customer experience. For example, if a licensee seeks withdrawal of a spectrum licence because it intends to use alternative spectrum for delivery of its service, the transition from the old spectrum to the new spectrum may well be seamless, and the information required by Reg. 16 (e) and (f) is not necessarily applicable. We therefore suggest that the proposed Reg. 16(2)(f) and 16(2)(c) rather be included in theThe Authority has considered the comments submitted and amended Regulation 16(3)(c) as follows- ‘following consultation with the licensee impose reasonable conditions on the licensee with respect to the migration of customers of the licensee or end-users.‘
Telecommunications and Broadcasting Service Licences 011 (as proposed to be amended). Reg. 10 of those Regulations deals with the situation where a licnsee intends to permanently discontinue providing its service in accordance with its licence. Draft Reg. 16(2)(f) and 16(3)(c). We also submit that it is in the interest of fairness, efficiency and due process that the Authority consult with a licensee in order to determine the reasonableness and practicability of conditions to be imposed and the requirements to be met in term of Draft Reg. 16(2)(f) and 16(3)(c). We suggest that this be addressed by- (i) Inserting the words ‘to the extent applicable’ after the words ‘referred to in subsection (1)’ in Reg 16(2); and (ii) Amending Reg 16(3)(c) to read: ‘following consultation with the licensee, impose reasonable and practicable conditions on the licensee with respect to the migration of customers of the licensee of end-users.‘
8SPECTRUM LICENCE CONDITIONS Reg 11(3) and (4) reflect the type of conditions that the Authority may include in a spectrum licence. Not all of the conditions are appropriate to a spectrum licence. It is our view that detailed technical and certain other specfications would be better contained in a schedule to a service licence. These included conditions relating to the roll-out obligations (Reg. 11(30(c)), universal access and service obligations (Reg. 11(4)(b)) and performance specifications (Reg. 11(4)(c)). We thereby propose that the potential licence conditions be clarified by- (i) Deleting Reg. 11(3)(c), Reg. 11 (4)(b) and Reg. 11(4)(d); and (ii) Including the relevant conditions in a schedule to the service licence to which the spectrum licence relates.Section 101(2) of the Act provide as follows- ‘(2) The Authority may issue a licence conferring on the licensee the right to use, or to cause any person in his or her employ or under his or her control to use a transmitter for any prescribed purpose or to use any radio frequency or group of radio frequencies or radio receiver for any purpose and in the manner prescriber or determined in the licence concerned’ Further thereto the Authority is of the opinion that the imposition of licence conditions as contained in Regulation 11 is discretionary. The comments and suggestions submitted is therefore not considered to be included in the regulations
9MATERIAL BREACHES OF SPECTRUM LICENCES Reg. 18 lists events which, whether specified as a licence condition or not , constitute material breaches of a spectrum licence which justify the cancellation or suspension of the licence. It is of concern that an event that is not listed as a licence conditions may constitute a material breach of a licence. On this basis, a licence could be suspended or cancelled due to non-compliance with an event which is not a licence condition. To do so would be arbitrary and unfair. We submitThe Authority has considered the comments as submitted and is of the opinion that its view is already provided for in the wording of the preamble to Regulation 18. Further thereto the Authority has amended Regulation 18(a)(ii) and (iii) and Regulation 18(a)(v) and (vi) by insertion of the word ‘material’.
that only breaches of conditions ought to constitute We suggest deleting the as a licence condition We are alco concerned very wide, such as ‘any quality of service conditions, or any roll-out output/transmitter locations, nature, extent or seriousness draft Regulations do example a licensee which of service target by 1% of the target by 15%. We suggest that this the breach to be material, Authority to consider circumstances giving advers impact on the We support the requirement process to be followed or revoked, as set out believe that it would be and the Authority if licensees an opportunity to remedy 18 (a) before triggering process. This would reduce the the Authority and facilitate for all concerned, including Wetherefore propose ‘Without limiting any Authority may cancel of the Act, the following breaches of a spectrum justifying the cancellation licence concerned.’ (a) material repeated after having first been opportunity to remedy We further suggest inserting after the word ’ any’ in similarly to refer to ’ a material obligations’and ‘with and (vi) respectively.
10USE OF RADIO APPARATUS EXEMPT FOR SPECTRUM LICENCE We support the provisions of Reg. 21 as regards the use of radio apparatus exempt from spectrum licence.
Reg. 21 (3) and (4) deal with protection from interference, in this regard, we note that certain spectrum bands are not governed by domestic legislation or rules because the bands are used across multiple territories, and we are therefore governed at international level.Anexample of this is where the transmission does not occur within Namibia, but where for example a satellite signal in a particular band is received in Namibia. It is important to ensure protection from interference for such legitimate services. This could be achieve by referring to any international treaty or convention that govern spectrum bands which are ot subject to in-country regulation. In order to take this situation into account, we suggest inserting the words ‘except where governed by any international treaty or convention, to which Namibia is a signatory’ , after the words ’ or any Regulations made underThe Authority is of the opinion that section 99 of the Act already makes provision for adherence to international treaties and agreemented entered into by the Namibian Government. There is thus no need to insert the proposed text in these regulations.
11INFORMATION REQUESTS
Reg. 35 empower the Authority to request any information from licensees to, amongst other things, collect and compile sectoral analyses or conducting regulatory inquiries. While we dot not object to he Authority’s power to request relevant information, we are concerned that this power is to broa. Requests for information should be relevant to the Authority’s regulatory functions and duties. We thereore propose that the Authority be empowered to request information that is relevant and related to specfic provisions of the relevant legislation, and that is reasonably required by the Authority in order to discharge its duties and functions Wesuggest that Reg. 35(1) be amendedasfollows- ‘The Authority may, in the format determined by the Authority, request any information from licensees which is reasonbly necessary for the discharge of its functions and duties to monitor and ensure compliance with the Act and these Regulations.‘The Authority has considered the comments as submitted and amended Regulation 35(1) as follows- ’ Authority may, in the format determined by the Authority, request information from licensees which is reasonably necessary to enable the Authority to discharge its functions and duties and to monitor and ensure compliance with the Act and these Regulations.‘
We suggest the Reg. 35(2)(c) be amended as follows- ‘Without limiting the generality of subregulation (1) the Authority may request relevant information from licensees which it reasonably requires in order to administer the Act to collect and compile sectoral analyses, for the purpose of planning, reporting or conducting regulatory enquiries in accordance with the Act.’ Wesuggest that Reg. 35(3) be amendedasfollows- ‘When requesting information in terms of this regulation, the Authority must provide a detailed specification of such request together with the purpose for which it is requested in terms of the Act, and a reasonable deadline for the response, and identify a contact person to whom queries may be directed.‘
12PENALTIES Reg. 28(1) and (2) provide that any licensee that fails to submit information or adhere to any regulations is guilty of contravening the regulations and liable to a penalty of up to N$ 500,000 for each contravention. The draft Regulations do not distinguish between egregious and minor contraventions of the draft Regulations and nor do they afford a licensee an opportunity to remedy a contravention prior to the imposition of a penalty. We propose that the Authority be required to consider the nature of the contravention in each case, and apply a penalty that is fair, just and equitable taking into account various actors such as the severity of the contravention, whether the licensee could be directed to remedy the contravention, whether the licensee has taken steps to remedy the contravention of its own accord, and whether the licensee is a first-time or repeat offender. In this regard we propose inserting the followig new sub-paragraph after Reg. 28(2) to read- In determining the penalty to be imposed, the Authority shalltakeintoaccountthecircumstances of the contravention, which may include the nature and severity of the contravention, the steps that could be taken by the licensee to remedy the contravention, whether the licensee has taken such steps to remedy non-compliance and the availability to te Authority of other means to secure compliance.The Authority has considered the comments as submitted and inserted Regulation 28(3) that read as follows- In considering whether to impose any penalty and the quantum thereof in terms of subregulation (1), the Authority must consider- (a) the severity of the contravention; (b) the circumstances that gave rise to the contravention; and (c) any adverse impact occassioned by the contravention.‘

2. Mobile Telecommunications Limited

Mobile Telecommunications Limited (MTC) submission submitted to the Authority on 11 February 2019 refers

No.CommentResponse
1AD REGULATION 2(c) ‘determine fair efficient and transparent licensing procedures’ Fair should be regarded in terms of the Regulations prescribing Quality of Service Standards applicable to Service Licences and in correlation of the market share.The draft regulations is procedural in nature and sets out the regulatory process to be followed in respect of spectrum licences. TheAuthority is thus of the opinion that there is no correlation with the Quality of Service regulations nor the market share of a licensee.
2AD REGULATION 4(1) We propose to add to Regulation 4(1),- ’ and with due regard to the industry needs’ and after ‘at its sole discretion’ and before ‘publish a notice in the Gazette’ Wefurther propose to add a sub clause hereunder that would allow for the Authority to consider a band open for application upon request by a licensee and such licensee providing reasong in the interest of the consumer.The Authority has considered the comments and conclude that no changes are required to the draft regulations in respect to spectrum licence to be awarded on a first-come-first- serve basis.
3AD REGULATION 4(4)(g) The entire Regulation is irrelevant, in that in order to apply for a spectrum licence, an Applicant must have an operating licence conferred by the Authority. Surely, the Authority upon issuing of such licence would be satisfied that the licensee meets requirements to provide a telecommunications service. Alternatively, the Authority could consider amplifying the definition of Applicant to read: ’ Applicant means a telecommunications service licence holder applying for spectrum licence.‘The Authority has considered the comments as submitted and deleted draft regulation 4(4)(g) in respect of submissions of financial and human resources together with CVs .
4AD REGULATION 4 We propose to add Regulation 4(14)- ‘If the Authority refuses to grant the licence, the Authority must issue the Applicant with reasons for its decision.‘The Authority has considered the comments as submitted and inserted Regulation 4(16) that read as follows- ‘The Authority must whether requested by an applicant or not, furnish reasons to the applicant for its decision to grant a spectrum license.‘
5.AD REGULATION 5 We propose to add Regulation 5(5)- ‘If the Authority refuses to grant the licence, the Authority must issue the Applicant with reasons for its decision.‘The Authority has considered the comments as submitted and inserted Regulation 5(5) that read as follows- ‘The Authority must whether requested by an applicant or not, furnish reasons to the applicant for its decision to grant a spectrum license.‘
6.AD REGULATION 7(2)(c)
Kindly advise whether it is the intend of the Authority for spectrum to be shared between licensees. In the event that the provision excludes existing licensees, kindly advise in terms of which provisions of the Act, it is permissable to issue spectrum licences to non-licensees.The Frequency Band Plan allows for sharing of spectrum in respect of allocation of spectrum to more than one service in the same band. Section 101(1) of the Act make provision that no person may use spectrum unless that person has a spectrum licence. Section 101(2) states- The Authority may issue a licence conferring on the licensee the right….to use any radio frequency or group of radio frequences or radio receiver for any purpose and in the manner prescribed or determined in the licence concerned’ The Authority is therefore of the opinion that it is clear that any person may apply for a spectrum licence. The use of spectrum is no exlusively reserved for service licence holders providing telecommunications or broadcasting services, but also applies to those persons providing services in relations to licence exempt service categories as set out in Regulation 5(1).
7AD REGULATION 7(2)(e) Assuming the ‘paragraph typo and should be paragraph whether it is the intende of the
(e)’ reference is a (d)’ kindly advise Authority to issue spectrum licences to non-licensees and if so, on what premise and interms of which section in the Act.The Authority corrected the reference to paragraph (d).
8AD REGULATION 7 (2)(g)(ii)
Spectrum licences should only be awarded subsequent to an operating licence being awarded, otherwise it assumes that an operating licence will be automatically awarded, which negates the right of the public to object againstPlease refer to the Authority’s position in respect of Regulation 7 (2)(c).
9AD REGULATION 8(b)
This Regulations is not clear, kindly elaborate, in terms of the Act and exisiting Regulations there is no limit on maximum bandwidth. Further, to impose a maximum bandwidth without consideration of the Licensee’s customer base and effect that such a limited would have on the consumer. Consideration should be on a case by case basis, on the Authority’s discretions based on facts.Section 101(2) of the Act provide as follows- ‘(2) The Authority may issue a licence conferring on the licensee the right to use, or to cause any person in his or her employ or under his or her control to use a transmitter for any prescribed purpose or to use any radio frequency or group of radio frequencies or radio receiver for any purpose and in the manner prescriber or determined in the licence concerned’
The Authority is thus empowered to consideration that amount of spectrum to be made available for assignment taking into consideration the demand for spectrum by all persons concerned to ensure adherence to the objects of the Act.
10AD REGULATION 11(1)(a) We propose to add at the end of sentence the following- ‘and renewable annually on payment of application fee and licence fees’ This addition is in line with the provisions of the Act.The Authority has considered the comments as submitted and concluded that the matter has been address in Regulation 13.
11AD REGULATION 18(a) We propose that any breaches for which a spectrum licence can be revoked be limited to breach in terms of the spectrum licence only, in the interest of fairness. It is trite in law that material breach (warranty repudiation) can only be in terms of the conditions placed upon by nature of such instrument. As such we propose to delete Regulation 18(a)(ii) if same refers to the general operating licence; (iv) and (vi) alternative limit these to applicability to the spectrum licence awarded.TheAuthorityisoftheopinionthatRegulation 18 already pertains to spectrum licences on as contained in the preamble to this regulation.
12AD REGULATION 18(c) We propose to add at the end of the sentence the following- ‘in respect of the application for spectrum licence’ .The Authority has considered that comments as submittd and amended regulation 18(c) accordingly