ICASA’s Complaints and Compliance Committee (CCC) recently held hearings into Telkom’s alleged non-compliance with the ADSL Regulations.

The hearings focused heavily on the issue of local capping.  The ICASA Regulation 3.4 states that “local bandwidth usage shall not be subject to a cap”, something which the complainant, Mr TG Cleghorn, felt Telkom is not in compliance with.

“This is complaint in terms of sI7C(l)(a) of the Act 13 of 2000, as amended that Telkom is contravening s3.4 of the Regulations inasmuch as local bandwidth is being subjected to the cap,” the official ruling states.

The Hearings

At the CCC hearings Telkom initially attacked the ICASA CCC’s authority and jurisdiction to hear the matter and later argued that Telkom is in full compliance with the ADSL regulations.

Telkom submitted that the correct interpretation of regulation 3.4 is that a subscriber's local bandwidth usage may never be capped, i.e. cut off or restricted, but that both local and international bandwidth may be counted and may accumulate for the purpose of calculating the total bandwidth usage and thus determining when the cap (which is to be imposed only in respect of international bandwidth usage) is reached.

Mr Cleghorn agreed with Mr Maritz's interpretation of regulation 3.4, but submitted that Telkom's actions were not in accordance therewith.

He asked the Committee for leave to call witnesses to testify that Telkom has indeed capped local bandwidth usage in the sense of cutting off or restricting access thereto.

However, the Committee refused to allow Mr Cleghorn to do so since it was never part of his complaint that Telkom had capped users, and Telkom was not afforded a reasonable opportunity to respond to such an allegation.

Ruling

The CCC Chairman, IWB de Villiers, says in his ruling that “In my view, Mr Maritz's submission in regard to the interpretation of regulation 3.4 is correct. None of the regulations throws any light on the question how the usage which contributes towards the capped amount of data is to be calculated.”

“If the intention of ICASA in promulgating regulation 3.4 was to provide that ‘local bandwidth usage shall not count towards the cap’, it would have been a simple matter to state this in clear and unambiguous terms. ICASA chose rather to use the words 'local bandwidth usage shall not be subject to the cap'," the ruling states.

The ruling further says that “…the proper interpretation of regulation 3.4 is that when the total data traffic reaches the amount of the cap, no limit or restriction may be placed on local bandwidth usage, but all other bandwidth usage may be limited or restricted.”

De Villiers added that he found Cleghorn’s argument unconvincing and that “Mr Cleghorn no longer supports the interpretation he originally gave to regulation 3.4 and now supports Mr Maritz's [Telkom’s] interpretation.”

“Accordingly, the complaint is dismissed,” the ICASA report concludes.

Criticism

ICASA’s set of ADSL Regulations were criticized by various industry experts for a lack of clarity and for being unenforceable.

There have also been accusations that the actual writing of the regulations were outsourced to a lawyer who did not attend the hearings, and that the ICASA ADSL panel’s suggestions fell on deaf ears.

There were even suggestions that the initial ADSL Draft Regulations – which were far more detailed – were watered down to avoid possible litigation from Telkom.

ICASA was asked for comment on these issues, but simply said that this will be handled in the CCC ruling – something which did not happen.

Cleghorn was however defiant, saying that “We'll have to take it to the next level…”

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