Communities end broadband wait

Johannesburg, 28 May 2007

Local communities and companies, sick of high prices and low availability of bandwidth, are taking matters into their own hands, installing and operating wireless networks - and lawyers say it may well be legal.

A quick search of the Web reveals a number of community groups operating in Johannesburg, Cape Town, Pretoria, Pietermaritzburg, Port Elizabeth and even Scarborough.

They are seeking to create free mesh networks, or city-wide WLANs, similar to Seattle Wireless, an American non-profit project that sought to develop a free, locally-owned peer-to-peer community wireless network.

Legality in doubt

However, the legality of such networks is a highly contested issue, as evinced by iBurst CEO Thami Mtshali, condemning such networks in a media statement in mid-February.

"Illegal operators using the public 2.4GHz frequency band for commercial purposes not only degrade the spectrum, they deny ICASA revenue in the form of licence fees which could be used to provide the regulator with the resources it is currently lacking," said the statement.

It also warned that, according to ICASA, contraventions of the Telecommunications Act constitute a criminal offence, and that a "working relationship" had been set up with the SAPS.

World Wide Worx MD Arthur Goldstuck says telecoms companies will claim such networks are illegal, "but my understanding of the Department of Communications' view is that they would not see this as being a contravention of the Telecoms Act".

He adds: "Many legal experts differ, but it is more about permissiveness than about permission. Personally, I think it is very cool, but that it is a romantic vision rather than a practical one."

Telkom declined to comment, saying it was a regulatory issue within ICASA's purview. ICASA failed to respond to queries.

Community gains

None of this has deterred local community and commercial operators. Antoine van Gelder, who participates in the Scarborough Wireless User Group (SWUG), says he and others participate because of the benefits the community gains.

"A large group of Scarborough residents, who would otherwise not be able to afford Internet access or would only be able to afford dial-up service, now have access to always-on Internet," he states.

The community also gains free local calls via Skype, participation in local forums, citizen-monitored security cameras and access to network games.

"What I would dearly like to see happen is that the Telecommunications Act is extended to specifically allow for the operation of non-profit community internetworks as their existence harms no one and they allow for a model of person-to-person interconnectivity that is beyond the practical scope of commercial or state-run internetworks," he adds.

Going forward, SWUG would like to assist other communities in setting up similar networks, establish links between community networks, encouraging the development of content within community networks to help tackle local problems, participate in community decisions and interface with local government.

Legal view

Brendan Hughes, of Michalson's ICT attorneys, believes the networks are probably legal. "I'm not familiar with the Scarborough LAN set-up, but debates over its legality in terms of the Telecommunications Act are possibly moot given the Act was repealed by section 97 of the new Electronic Communications Act and the implementation of a comprehensive licensing regime in terms of the new Act is still a work in progress in some respects," he says.

"Under certain regulated conditions, wireless local area networks operating in the 2.4 - 2.5GHz frequency band have not required a licence in terms of any law as long as they remain within that band. It should also be borne in mind that the right of access to information and the right to freely receive or impart information are both fundamental rights contained in the Constitution. Letting people have affordable access to information so that they can make informed decisions about matters affecting them is a way of empowering them."

His colleague, Mike Silber, holds a similar view. "To some extent, ICASA is causing the problem because there is a huge demand out there for spectrum and they are not allocating it," he says. But he also sympathises with iBurst.

"I recognise ICASA has to go through processes, and I can understand some operators are upset they are paying for licences and that there are 'rogue' operators out there who don't."

To Silber, the bottom line is Scarborough-style networks are "absolutely fine" as long as they remain within a defined community such as a townhouse complex, office park or other definable "single location", a term used but not defined in law.