ICT sector policy and regulation in the time of COVID-19

Independent analyst and researcher Dr Charley Lewis.

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As the first week of South Africa’s COVID-19 lockdown comes to a close, the streets remain strangely silent and mostly deserted. But now the airwaves hum, as housebound South Africans turn to e-mail and the cloud, to Zoom and WhatsApp, to SABC and DSTV, Netflix, YouTube and Showmax.

What, then, are the implications of the crisis for the ICT sector, and its role in the economy and in society?

And what of the measures being put in place to mitigate, manage and optimise the sector going forward?

In contrast to the dithering and delays that marked COVID-19 responses in so many jurisdictions, SA acted promptly and decisively, long before the first deaths. And the measures adopted have been firm, evidence-based, and aligned with emerging international good practice. President Cyril Ramaphosa has addressed the entire nation several times. We have detailed and specific regulations governing the disaster more widely and the current lockdown specifically, supplemented by a slew of others.

Our sector regulator has responded promptly and proactively, at least on spectrum. Service providers have come to the party, albeit in piecemeal and un-coordinated fashion.

Even the International Telecommunication Union, belatedly and well behind the eight-ball, issued a set of guidelines on how to develop the very national emergency plans, policies and regulations that we are now forced to implement ad hoc, flying by the seat of our pants.

And the minister last week issued a hastily cobbled-together, well-intentioned set of instructions, officially labelled Policy Directions.

In some ways, Africa has been able to learn from its own Ebola crisis: act promptly; act decisively; act without regrets. And correct mistakes later.

Among much else, the COVID-19 crisis demonstrates how central ICTs have become to both economy and society in the 21st century. The only previous health pandemic on a similarly global scale, the 1918 ‘Spanish Flu’, predated both radio and TV, and came long before either mobile telephony or broadband Internet.

ICT infrastructure and services are now a fundamental enabler of economic activity, social interaction, developmental interventions, and cultural and entertainment content. The ICT sector thus sits in the cross-hairs of the COVID-19 crisis in a unique way.

The failures of SA Connect and USAASA to connect the poor, the remote and the marginalised have now come to haunt us.

Without seeking to underplay the deep and lasting wounds the current pandemic will inflict on the economy, the ICTs are a primary tool to enable and support the kind of lockdown currently in force - permitting government to function, white-collar modes of work to continue, and critical channels of communications and information dissemination to be sustained in ways not hitherto possible.

Further, ICT services are now able to provide a vital vehicle for entertainment and social interaction, an avenue to mitigate the strictures of ‘social distancing’.

ICTs are, therefore, now truly an essential infrastructure and service, one that we dare not allow to falter or fail. If our economy and our society are to manage the crisis, we need to protect connectivity, ensure bandwidth and redundancy, extend content and services.

But critical digital divide caveats remain. Just as those in marginal employment or living in crowded informal settlements are most vulnerable to the impact of the COVID-19 lockdown, so too are they marginalised when it comes to universal affordable access to ICT infrastructure, services and content.

The failures of SA Connect and USAASA to connect the poor, the remote and the marginalised have now come to haunt us, as so many South Africans remain unconnected via anything but a mobile handset, daunted by high data prices, and thus cut off from much that alleviates the challenges of household confinement.

The current crisis and its aftermath will surely spur efforts to bridge this digital donga, to foster access, uptake and usage. Now more than ever, the ICT sector is poised to enable changes to the way we live, work and play. Indeed, ICT is now an essential lifeline - and has been declared as such in the regulations.

And the measures currently being put in place to carry the sector through the crisis are critical in their implications for a connected future.

The response to the pandemic across the ICT sector has, unfortunately, been haphazard and disjointed thus far, often more in response to the Competition Commission’s data service market inquiry than to COVID-19 itself. Instead of an agreed and co-ordinated slate of responses, we now have a disparate plethora of Web site zero-rating, faster FTTH bandwidth, price reductions, free e-books, even some free data to access proprietary social media platforms.

But so far there has been no systematic provision of free lifeline data, no across-the-board increases in data caps, no undertakings not to disconnect subscribers, and very little by way of public information dissemination by SMS.

ICASA has indicated a willingness to issue spectrum on an emergency basis, and now offered a spectrum fee payment holiday, but has largely confined itself to press releases about its operating procedures during the crisis.

And the minister last week issued a set of Policy Directions. These cover a number of key issues and important areas where urgent ICT sector intervention is needed to respond to COVID-19. But much of this the service providers and the regulator should already have been carrying out. And the directions stand on somewhat dubious legal foundations.

It is important, therefore, that we look at some of the areas of key COVID-19 policy and regulatory intervention, in what is beginning to emerge as good disaster management practice.

With so much of economic activity moving out of the office into the online videoconference and VPN space, much of it via WiFi and mobile networks, spectrum has quickly emerged as a critical issue.

In the US, some of the major mobile operators were able, with FCC permission, to secure additional spectrum on an emergency basis, and wireless Internet service providers have also been allocated emergency spectrum. In Ireland, the regulator has launched an urgent, expedited notice-and-comment procedure to issue temporary spectrum licences to its three mobile licensees. ICASA too quickly moved to announce its intention to make additional spectrum available to licensees, along with encouraging the adoption of TV white space technologies, and has now announced a temporary spectrum licence extension.

While such very necessary spectrum largesse is critical, it needs to be managed carefully, and treated as a regulatory sandbox, lest provisional exigencies become long-term fixtures for the sector.

Any such temporary spectrum assignment needs to be strictly for a limited 30-day or 60-day period, with a regulatory discretion to extend, and should be either fee-free or nominally priced, and may well further be accompanied by a temporary waiver of existing licence fees.

Although the current crisis has thrust to the fore the shortcomings of ‘SA Connect’, and its many missed targets, the deployment of new Internet and broadband infrastructure is surely not a high and immediate priority in the midst of social distancing, and with only essential workers allowed to move around.

Far more urgent is the maintenance of existing bandwidth, from the local loop, through backhaul, right up to the WACS and other undersea cable connectivity.

But the changed work and leisure patterns that will result from COVID-19, the shift to online modes of interaction and to the consumption of streaming entertainment content, will certainly, in the medium-term require extensive efforts to provide additional broadband infrastructure. Further, the geography of networks is likely to undergo a seismic shift, from smart cities to smart suburbs - and to smart townships, if we are serious about context-specific policy and about universal access and service.

It is then that the failure to develop a rapid deployment framework and guidelines will come back to haunt us - these were first mandated a full 15 years ago, when the 2005 ECA was first adopted, but have never been actioned.

It is not clear the extent to which the rapid deployment provisions of the COVID-19 Policy Directions will alleviate the bottleneck, given the complexity of jurisdictional issues impacting on rights of way and wayleaves, and the multiplicity of existing regulations and affected entities.

The existing terms and conditions for broadcasting licensees already carry provisions requiring the dissemination of public service announcements, including in cases such as the current health emergency.

Strangely though, ICASA appears not yet to have invoked those powers. Even more strangely, the public and other broadcasters appear not to have acted on their own with sufficient urgency to disseminate information on COVID-19. While there has been much news coverage, public service advertising (such as UNICEF SA’s pro bono spots), COVID-19 programming, and measures such as the use of onscreen text crawls, have been conspicuous by their absence.

Equally problematic has been the dearth of such public service announcements as those carried in the UK by the mobile operators, given that the SMS has greater reach than either TV or radio or press on their own, and substantially greater than .za Internet browsing.

Surely the lockdown requires all service providers to disseminate regular public service messaging and alerts through all available channels, a concerted ‘infodemic’, urging the public to stay at home and to practise the necessary sanitation and other measures?

As the recent data services market inquiry so clearly demonstrated, the cost of data is a major barrier inhibiting access to and uptake of online services, from e-mail to video streaming. Much PR mileage has been made (and criticism voiced) of the measures subsequently introduced by the major operators - Vodacom, MTN, Telkom and now Cell C - to increase access and affordability.

Clearly, zero-rating of access to health and educational content is a critical and urgent intervention, to counter the pandemic and to support learners and students confined to home due the closure of schools, colleges and universities. It is a measure widely adopted in the current crisis, in countries as diverse as Morocco and Uganda.

But, it remains a measure of benefit largely to the online minority, requiring appropriate digital learning solutions, such as zero-rated mobile e-learning apps, suitable for South Africa’s unique online penetration profile. And there appears to be little if any co-ordination between service providers. There is no single list of Web sites thus zero-rated in South Africa, nor any clear set of criteria or framework governing zero-rating.

Free-to-air television, of course, provides another channel of access to public service, educational and entertainment content. And there are already some moves afoot in the subscription-TV space.

A number of other jurisdictions have increased or removed data caps, or agreed not to disconnect subscribers with unpaid bills - interventions admittedly only beneficial to affluent, postpaid subscribers.

But there are analogous steps for prepaid subscribers that could surely be adopted in South Africa, and that would target those who need this kind of support the most - such as doubling the size of prepaid data bundles, or flat-rating sub-1GB bundles.

And, sadly, little has been done to provide lifeline data for prepaid subscribers, something also called for by the Internet Service Providers’ Association. Importantly, lifeline data should be net neutral, and not just for proprietary platforms. The recent announcement by Cell C may yet lead the way.

Mobile money fees have also been waived in some jurisdictions, such as Kenya, for the small denomination transactions typically used by poorer customers. There have been some moves by South African banks to facilitate access to social grants, but these focus on offline banking via ATMs, and more can clearly be done.

What will be needed in South Africa is a co-ordinated slate of COVID-19 customer support interventions, agreed through consultations between the minister, the regulator and the service providers of the kind that emerged in the UK last weekend.

A number of jurisdictions have accessed mobile location data in order to combat the spread of COVID-19 -  by providing information on the location of mobile users, or to assist with tracking and tracing individuals who may have been exposed to the virus, or to enforce self-quarantine orders. In some cases, this includes the development and deployment of voluntary track and trace apps.

However, there are considerable concerns that such moves could violate the personal privacy of individuals. While some would argue the protection of public health trumps personal privacy and confidentiality, any deviations from currently legislated privacy protection would need to be managed with extreme caution and circumspection.

SA is not China, South Korea or Iran. Where user location data is provided, as per the injunction of the minister, it would need to be aggregated and anonymised and subject to immediate-term expiry, as in the case of the EU, where measures need to adhere to GDPR privacy provisions.

The burgeoning bandwidth consumption driven by having so many confined at home is also a cause for concern. But it’s less the work-from-home demand that’s spiking data traffic: it’s the evening entertainment peak hour – now several hours. In SA, Vumatel and Frogfoot have both promised affluent FTTH streamers faster bandwidth.

In Europe, albeit with the penetration of broadband magnitudes greater, networks are constrained but coping. Nevertheless, Netflix and YouTube have cut back on video quality in order to preserve bandwidth - and streaming providers are set to follow suit in South Africa.

However, traffic management to ensure priority for real-time, interactive services may be necessary, and the Pan-Europe regulatory body, BEREC, has already issued pro-net-neutrality guidelines in this regard.

The injunction on number portability is a surprising ministerial intervention, given the low levels of porting in South Africa - but a similar measure has been undertaken in Spain in order to free operator resources to focus on more urgent priorities.

It is clear that a number of policy and regulatory interventions are needed to manage the changes in ICT consumption, demand and usage - both during the immediate exigencies of the lockdown period, and through the economic and social changes in the immediate aftermath and as the country moves into the recovery phase.

Some of these have been touched on above, and will still unfold; others are yet to emerge.

It is equally clear that all stakeholders will need to collaborate in optimising a comprehensive set of responses: the minister and her department, the regulator, the service and content providers, business users and individual consumers. Collaboration, clarity and coherence are required.

Those keen to track ongoing developments should monitor Mobile World’s COVID-19 industry impact portal, the updates from my colleagues Steve Song and at Ellipsis.

And please contact me to correct any errors of fact or interpretation, or to share new insights and information.