Fun with the Electronic Communications Act part 1

[dominic]

Question 1

You are special advisor to Papi. Recently the great man has taken to reading bits of the Electronic Communications Act whilst on the throne - he has heard that the president signed it so figures it must be kind of important.

He has sent you a rather disturbing mail and requested that you respond thereto as a matter of urgency. It reads as follows:

It was a good thing i was on the throne when i came to chapter 15 of the Act otherwise my surprise may not have been so easy to conceal....Have a look at section 93 and particularly the bits i have quoted below:

"(7) The Authority may not grant or include in any licence converted in terms of this Chapter any monopoly or exclusionary rights in any network or service contemplated by this Act or the related legislation.
(8) Any monopoly or exclusive rights existing by virtue of the related legislation, the IBA Act, the Sentech Act or theTelecommunications Act is null and void, but radio frequency spectrum that is assigned by the Authority to a licence holder is not considered a monopoly or exclusionary rights under this subsection.
(9) No existing licensee may have any claim against the Authority or any other person asserting such monopoly or exclusionary rights."

Has Ivy gone mad? What can this mean?

Your job is on the line. For 50 marks and with reference to essential facilities and the local loop, advise your leader as to the possible implications of the clause for the continued generation of obscene profits at the expense of the country.

 

[krycor]

OMGUH..
that clause looks evil if implemented.

 

[dominic]

if implemented.

your first discovery on downloading a copy of the Act is that the conversion process for licences existing under the telecomms act (such as your public switched telecommunications service licence) into licences under the Electronic Communications Act is required to be completed within 24 months of the commencement of the Act



There is some warmth, however. The commencement of the Act has been delayed by the DoC trying to get a firmer grip on ICASA. ICASA? 24 months? Can you say "public participation process"?

..not likely

 

[The_Unbeliever]

"(7) The Authority may not grant... ...this Chapter to any monopoly...

Seems there was something missing, a missing to makes more sense...

This really looks like somebody's going to throw a temper tantrum...

 

[Bona Botse]

okay, can u guys put the above in laymans terms so the rest of us with iqs below 110 can understand?

 

[R4tt3xx]

Seems there was something missing, a missing to makes more sense...

This really looks like somebody's going to throw a temper tantrum...

No it's right.... This is evil. When implimented all licence holders WILL have access to every other license holders infrastructure. HOWEVER if a license is CREATED not converted, the above points (7,8 and 9) do not apply.

 

[ettubrute]

No it's right.... This is evil. When implimented all licence holders WILL have access to every other license holders infrastructure.

Evil? No ways! Bring it on! LLU without another fight...

 

[R4tt3xx]

Yes this is LLU, for every provider that has a current license, they will have to sell access to their network to anyone who has a license. If that license is created after this bill goes into effect, they can go into an exclusive/mono deal with another such license holder and no one may interfere with it. This is dangerous for all existing providers as it opens up competition.

 

[kifoth]

Does anyone think this will feature in Ivy's announcement later this month? It would explain why she stalled delivering it until after the bill was passed...

Also, this isn't proper LLU, since you still need a licence to get access. The only 2 groups with licences are SNOT and Telkom. Correct?

 

[Roman4604]

Also, this isn't proper LLU, since you still need a licence to get access. The only 2 groups with licences are SNOT and Telkom. Correct?

Thats my understanding.

SNOT will be the only one who is be able to rent the raw copper and exchange facilities/space from Telkom. But that not to say that other ISP wont be able to re-sell the LL at a wholesale level (as a self-managed service from the above 2).

 

[Inertia]

I don't see in any way why this could be 'evil'?? Wot it's basically saying is unbundle the local loop, and you're saying 'but what abt the poor isps'?!

give me a break!!

 

[R4tt3xx]

ISPS need to get this license in a hurry, it will allow them to provide a physical infrastructure and content to the public. ICASAs website contains a list of all license holders.

 

[dominic]

under the ECA every licencee is required to enter into an interconnection agreement and/or facilities leasing agreement upon receipt of a reasonable request to do so from any other licensee or person who is license-exempt

[there are a number of provisions about time periods within which things have to be done]

[simplified] under the Telecommuncations Act there is a single fixed line infrastructure licence - a public switched telecommunications network licence or PSTN licence which is a national infrastructure licence (as held by telkom an the SNO)....there are provisions about local access telecommunications services but these were never used...

under the ECA there will be two broad kinds of infrastructure licence - an individual licence (national infrastructure and networks of socio-economic importance) and a class licence (infrastructure on a local or district municipality level and networks of lesser socio-economic significance)

an individual "electronic communications network service licence" is obviously more difficult to apply for and, under "managed" liberalisation the Minister will retain control over who gets these

but the class licence to self-provision your own network is far easier to get - there is a 60 day registration process (if ICASA don't get back to you within 60 days then it is regarded as having been granted)......these licences will be available to ISPs and the current VANS

 

[R4tt3xx]

under the ECA every licencee is required to enter into an interconnection agreement and/or facilities leasing agreement upon receipt of a reasonable request to do so from any other licensee or person who is license-exempt

[there are a number of provisions about time periods within which things have to be done]

[simplified] under the Telecommuncations Act there is a single fixed line infrastructure licence - a public switched telecommunications network licence or PSTN licence which is a national infrastructure licence (as held by telkom an the SNO)....there are provisions about local access telecommunications services but these were never used...

under the ECA there will be two broad kinds of infrastructure licence - an individual licence (national infrastructure and networks of socio-economic importance) and a class licence (infrastructure on a local or district municipality level and networks of lesser socio-economic significance)

an individual "electronic communications network service licence" is obviously more difficult to apply for and, under "managed" liberalisation the Minister will retain control over who gets these

but the class licence to self-provision your own network is far easier to get - there is a 60 day registration process (if ICASA don't get back to you within 60 days then it is regarded as having been granted)......these licences will be available to ISPs and the current VANS

I like that last line.... Time to make some friends with VANS providers.

 

[mystic]

Facilities leasing

I would like to know what is going to transpire wrt paragraphs 43(8), 43(10), 43(11), 44(3)(b) and 44(3)(c)?

(8) The Authority must prescribe a list of essential facilities including but not limited
to—
(a) electronic communications facilities, including without limitation local loops,
sub-loops and associated electronic communications facilities for accessing
subscribers and provisioning services;
(b) electronic communications facilities connected to international electronic
communications facilities such as submarine cables and satellite earth
stations; and
(c) any other such facilities,
required to be leased by an electronic communications network service licensee in terms
of subsection (1).

(10) An electronic communications network service licensee may not enter into any
agreement or other arrangement with any person for access to, or use of, any
international electronic communications facilities, including submarine cables and
satellites, that—
(a) contains an exclusivity provision;
(b) contains provisions that create undue barriers to access to and use of such
international communication facilities; or
(c) otherwise restricts any party to such agreement or other arrangement from—
(i) leasing;
(ii) selling; or
(iii) otherwise entering into an agreement with any licensee under this Act or
person providing services pursuant to a licence exemption for access to,
and use of, such international electronic communications facilities.
(11) Any exclusivity provision contained in any agreement or other arrangement that
is prohibited under subsection (10) is invalid from a date to be determined by the
Minister after consultation with relevant parties.

(3) Matters which the electronic communications facilities leasing regulations may
address include but are not limited to—
(b) the quality, performance and level of service to be provided, including time to
repair or restore, performance, latency and availability;
(c) subject to and in accordance with section 47, wholesale electronic communications
facilities leasing rates and the manner in which the structure of fees
and charges for such electronic communications facilities leasing must be
determined;

 

[Prometheus]

your first discovery on downloading a copy of the Act is that the conversion process for licences existing under the telecomms act (such as your public switched telecommunications service licence) into licences under the Electronic Communications Act is required to be completed within 24 months of the commencement of the Act

Am I correct in assuming that commencement of the act is actually when it was signed. If so does that mean ICASA has to finish the whole process in 24 month from then and what happens if they don't do so. Looks like we have "only" a little under 24 months to wait.

I don't see in any way why this could be 'evil'?? Wot it's basically saying is unbundle the local loop, and you're saying 'but what abt the poor isps'?!

give me a break!!

I think this is more than just unbundling the local loop. If I read point seven correctly it includes the whole network including the fibre network and SAT-3:
"(7) The Authority may not grant or include in any licence converted in terms of this Chapter any monopoly or exclusionary rights in any network or service contemplated by this Act or the related legislation."

Yes this is LLU, for every provider that has a current license, they will have to sell access to their network to anyone who has a license. If that license is created after this bill goes into effect, they can go into an exclusive/mono deal with another such license holder and no one may interfere with it. This is dangerous for all existing providers as it opens up competition.

So, does this mean that only Telkom and SNO will fall under this act as they had a licence before the signing of the act. I can see Telkom sh**ting in their pants over this. I like it.

 

[dominic]

Am I correct in assuming that commencement of the act is actually when it was signed. If so does that mean ICASA has to finish the whole process in 24 month from then and what happens if they don't do so. Looks like we have "only" a little under 24 months to wait.

unforunately not - once the DoC gets its little power grab out the way the Pres will have to proclaim a commencement date by notice in the government gazette

what happens if they don't? they'll be given more time....

 

[dominic]

I would like to know what is going to transpire wrt paragraphs 43(8), 43(10), 43(11), 44(3)(b) and 44(3)(c)?

not sure if you have specific queries but these provisions set up the potential for some far-reaching liberalisation

as always subject to political will and ICASA's capacity

esp. like the power to render invalid any exclusionary provision in the SAT3/WUSC/SAFE cable agreement - after consultation with the relevant parties (read telkom)...at the very very least this has got to happen so that VSNL (part of SNO) which has rights in the cable, can get the right to establish a landing station of their own and bring in international bandwidth

 

[mystic]

Questions

Dominic, wrt 43(8)(a), there doesn't seem to be a clause which stipulates that it only becomes effective after consultation, as is the case with the submarine cables? It seems that 43(11) only applies to 43(10) which only refers to international electronic communications facilities. So if I understand it correctly, LLU should become effective as soon as the Act becomes effective?

So ito driving down prices, we should at least have part of the remedy in place if LLU becomes a reality when the Act becomes active.

Wrt the type of licensee that can lease facilities referred to in 43(8)(a), it's not clear to me if it can only be leased by electronic network communications service licensees (SNO, Voda, MTN, Cell C, Sentech) or also by electronic communications service licensees (ISP/VANS)? If it's the latter, then the picture going forward would look even better as it would allow many more players to have access to the local loop.

 

[BTTB]

Unbundle the Local Loop. Now!

Glad I am not a lawyer.
You guys have lots to read.
I will read my wife's You Magazines instead.

Interesting stuff nevertheless.
Thanks for making us aware all you legal eagles.

What are your thoughts on the Dotco Case where Telkom and Dotco have settled out of court?