Draft 5G tower policy threatens property rights in SA

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The proposed policy which allows electronic communications network service (ECNS) licensees to erect 5G towers on private property may infringe on South Africans’ constitutional rights.

This is according to civic organisations and telecoms analysts reacting to the proposed policy that aims to accommodate the accelerated deployment of electronic communications networks, such as LTE and 5G.

Last month, communications and digital technologies minister Stella Ndabeni-Abrahams gazetted a new policy on the deployment of communications networks in SA, allowing the public to comment on the proposal before implementation.

The policy gives mobile networks and other licensees the right to select, enter and use public or private land for the deployment of their network infrastructure.

Civic organisation DearSA says it has, through its online public participation platform, facilitated 56 829 submissions (as of 17:00 on 11 August) to government by South African citizens regarding the proposed policy.

Rob Hutchinson, managing director of DearSA, tells ITWeb the proposed policy violates several constitutional rights.

He says the policy places a responsibility on the owners of the property, and the owners must exercise due care and diligence to avoid damage to the electronic communications networks or facilities deployed on their property.

“If any damage is caused by the owner, he/she will be held liable,” Hutchinson says. “The network provider must notify the property owner with 30 days calendar notice in writing of its ‘proposed property access activity’.”

Access fee question

According to the proposed law, no access fee could be charged by the owner, except in cases of “intrusive electronic communications networks or facilities, such as masts”, when a “reasonable access fee” may be charged.

The proposed policy states property owners may not charge the ECNS with an access fee in certain cases.

This includes where the facilities are not intrusive, where it does not constitute a cost to the property owner or deprive the owner use of the land.

A reasonable access fee may be charged where more intrusive ECNS (such as masts) are erected on the private property. However, the policy does not clearly define what can be viewed as intrusive in such cases, says DearSA.

Says Hutchinson: “The proposed policy might have the purpose to satisfy the public interest in the rapid rollout of electronic communications networks and electronic communications facilities, but it is going to limit private property owners’ rights in an adverse way.”

He points out that the first major problem is that the property owners will be held liable for any damages to the ECNS’s erected masts.

Secondly, he notes, the owners will not be sufficiently compensated for the use of their property by the ECNS. Thirdly, there are less restrictive methods which could be used by the ECNS licensees in accordance with the Constitution’s section 36, he adds.

Another civic organisation, the Free Market Foundation (FMF), says the proposal effectively aims to give ECNS licensees the power to overrule private property owners’ right to determine who may enter their property, by giving telcos “the right to enter upon and use public and private land for the deployment of electronic communications networks and facilities” and entitling them to “select appropriate land and gain access to such land for the purposes of constructing, maintaining, altering or removing their electronic communications networks or facilities”.

FMF legal and economic analyst Jacques Jonker says: “This is extremely worrying, considering the threats already posed to private property rights in South Africa by the proposed amendment of section 25 of the Constitution.”

According to the FMF, the situation is also exacerbated by minister Ndabeni-Abrahams’ insistence that property owners may not charge ECNS licensees fees to build on their property, except under very specific circumstances.

Communications and digital technologies minister Stella Ndabeni-Abrahams.
Communications and digital technologies minister Stella Ndabeni-Abrahams.

Draconian policy

Meanwhile, independent analyst and researcher Dr Charley Lewis says: “As currently formulated, the draft policy is draconian and far-reaching. It appears to give licensees near carte blanche when it comes to the deployment of telecoms networks and facilities on both public and private land, although the minister has stated this is far from her intention.”

He notes the draft policy shifts the onus from the licensee seeking permission to deploy, over to any land owner wanting to object to that deployment; and may well violate the Constitutional protection against being deprived of the right to property.

That said, a proper, comprehensive set of rapid deployment guidelines is deplorably long overdue, says Lewis.

“Deployment of communications facilities and networks is always a balancing act between the public interest as well as the social and economic benefit brought by networks and services on the one hand versus the rights of individual land owners and communities on the other,” he adds.

For Dobek Pater, telecoms analyst at Africa Analysis, the focus of the policy is in relation to the future 5G infrastructure (the 5G sites and backhaul infrastructure), and subsequently wireless access technologies.

“However, I would expect that this would be done within reason. 5G infrastructure would need to be very densified for many of its applications, requiring many sites,” Pater says. “However, many of these sites – most in fact – would be on existing tower and other infrastructure, so in reality, sites may be erected on office and apartment buildings, street lamp posts, etc.”

Some property owners may not like this, he says. “However, ultimately, if the country wants to have high-speed broadband infrastructure deployed widely, and particularly infrastructure such as 5G in the urban areas to complement access fibre infrastructure, it needs to make provision for unencumbered and efficient network infrastructure deployment.”

Homeowner resistance

Arthur Goldstuck, World Wide Worx MD, believes at the very least, we will see massive resistance from home owners, and such installations will probably require law enforcement personnel to participate in the installation.

He notes the most likely scenario will be class action lawsuits and other court action to challenge the constitutional validity of the regulations.

“One gets the sense that the broad sweep of disaster regulations emboldened the minister to take a similar anything-goes approach to rollout 5G networks. It has the feel of the kneejerk regulatory environment we are seeing emerging in the US, coming across as if it is designed to deflect attention from the real issues facing telecommunications.

“The real issue facing 5G rollout in South Africa is not the erection of towers, but the issuing of spectrum. We need to see this kind of aggressive and swift approach taken with spectrum allocation, not with further limiting the rights of home owners,” Goldstuck says.

Thecla Mbongue, senior research analyst for Middle East and Africa at Omdia, says: “The draft policy seems to be directed to rollout on lands in rural areas. Therefore, there might have been situations where equipment was installed on lands without the owner being aware of it initially.”

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