I used Starlink’s satellite internet access services while travelling through rural central Mozambique last December. It worked well and had impressive speeds. Starlink is available in Sub-Saharan nations Botswana, Eswatini, Ghana, Kenya, Madagascar, Malawi, Mozambique, Nigeria, Rwanda, South Sudan, Zambia and Zimbabwe, but not in SA.
Some industry stakeholders are rabid about this. They generally blame it on a “BEE” requirement in SA’s Electronic Communications Act, even though Starlink itself has not complained. The act obliges telecommunication infrastructure and service providers that provide their services nationally to have 30% historically disadvantaged group (HDG) ownership. The definition of HDG is not clear (it seems to include women of any hue), but in position papers the Independent Communications Authority of SA (Icasa) indicates this to mean black people only.
Civil rights organisation AfriForum is livid, arguing that Starlink is unable to obtain a licence because it is “too white” and Icasa is racist, even though good connectivity is urgently needed in remote, rural areas for emergency communications purposes. Respected industry publications have twisted themselves into knots, churning out Starlink-related articles lamenting the HDG ownership requirement.
What they all seem to forget is that the act, code of good practice on broad-based BEE, the ICT Charter and other HDG-related regulations are there to improve SA’s skewed ownership demographics in the information and communications technology (ICT) sector. The Electronic Communications Act stipulates that one of its objectives is to “promote broad-based BEE, with particular attention to the needs of women, opportunities for youth and challenges for people with disabilities”.
In case the torch and pitchfork-bearing anti-BEE crowd was not aware, regulations limiting or promoting ownership, whether by foreigners or a particular local demographic, are not unique to SA. According to the International Telecommunications Union, 26% of its member countries limit foreign ownership in the ICT sector, with countries such as the US, France, Canada and Japan falling into this group.
But, some may argue, foreign ownership and even local ownership restrictions in those countries are not race based. This is not true, because race-based ICT-related ownership laws exist in some of the world’s strongest democracies. In a US court case, Metro Broadcasting v Federal Communications Commission, a losing radio station licence applicant challenged the award of a radio station licence, where the deciding factors included minority (black or Hispanic) ownership.
The US Supreme Court upheld this approach, saying: “It is not a constitutional defect in this programme that it may disappoint the expectations of non-minority firms. When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such a sharing of the burden by innocent parties is not impermissible.”
If countries such as the US have applied race-based ownership criteria to remedy discrimination against minorities, how much more justified is it in SA, where the minority discriminated against the majority?
In the sudden emergency to get Starlink licensed in SA even communications & digital technologies minister Solly Malatsi wants to engage in legal gymnastics. He has proposed issuing policy directions to Icasa and is considering implementing a concept called an “equity equivalent programme”, which would exempt Starlink from “black” ownership requirements.
The reality is that the minister can issue all the policy directions he wants, and provide for equity equivalent programmes, but it is not up to Icasa. The simple truth is that if the Electronic Communications Act is not amended to remove the 30% requirement, Malatsi’s interventions will fall flat.
His department is typically responsible for amending the act, and given our legislative process I cannot see that amendment happening for about two years. Never mind the court challenges that will follow after that from stakeholders in whose interests it is to maintain the 30% requirement.
AfriForum is right on one thing: SA definitely needs good, ubiquitous broadband in its remote and rural areas. We have all heard about how a 10% increase in broadband connectivity results in an average 1.5% increase in a country’s GDP. But Starlink is not the solution to SA’s poor rural connectivity. It is quite expensive and probably only suited to a particular demographic that can afford it. It is not the ideal long-term solution to the broadband needs of rural communities and facilities such as hospitals and public colleges.
We need solutions such as public-private partnerships that will roll out fibre to central hubs, including the hospitals and colleges one might find in rural areas. These hubs can have “spokes” that radiate wireless broadband connectivity over a broader area. It is possible that members of organisations such as the Internet Service Providers Association and Wireless Access Providers Association would jump at the opportunity.
We also need solutions such as the practical approach Icasa proposes in its consultation document on a new licensing framework for satellite services. Starlink may even be permitted to provide its services in a particular way that would not need HDG compliance.
So, until Malatsi has done few flick flacks to change the law, or Icasa’s licensing framework for satellite services is finalised, Starlink will need to find some good telecom regulatory lawyers who can help it “maak ’n plan” to comply with our BEE laws, because they are not going to change any time soon.
• Pierce is a director at PPM Attorneys in Johannesburg, specialising in all aspects of ICT law.
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