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Question of the Day: If you were buying a TV today, which brand would you choose?
CellC and Sentech are conspicuously absent from that list - I know they're both inept but so is Telkodemonopolies...
Just something that's been bugging me in several recent news articles - has the Telecommunications Act of 1996 actually been repealed in its entirety?
I was under the impression that only portions of it had been repealed, and that the rest of it would be repealed only after !CASA completes the licence conversion process...dominic?
Ok, we all know that the Telecommunications Act was designed to give Telkodemonopolies its monopoly status - until such time as the Minister of Communications decided otherwise, which obviously prevented any other entity from ["legally"] being able to directly compete with Telkodemonopolies - until such time as Poison Ivy decided to allow any real competitors to operate in the telecoms market.
The issue here, is whether or not Poison Ivy decided to allow VANS to directly compete with Telkodemonopolies, and the fact is that she did make a policy announcement back in 2004 to that effect - the fact that Telkodemonopolies told her what an idiot she had been and she decided to change her mind months later [probably to keep the dividend payouts into her back pocket flowing] - it was literally one day before [on 2005-01-31] the policy directive came into effect [on 2005-02-01] is irrelevant bcos AFAIK the Telecommunications Act did not make provision for the minister changing her mind after she had announced that VANS could self-provision and therefore directly compete with Telkodemonopolies.
If the Telecommunications Act had made provisions for the MoC to take away VANS' self-provisioning rights after a policy directive had already been published to allow VANS' self-provisioning, then Poison Ivy would be able to do so, however that is not the case.
I wish Poison Ivy many flies in her face - preferably accompanied by the fleas of thousands of camels.
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johandutoit2000
Senior Member
And if the courts find otherwise, it would be a clear sing that the judicial system is not as independant as it should be.
+1 I'm not holding my breath, as much as i hope Altech wins, I think it may go the other way!
ads
Senior Member
Yes. The EC Act repeals the Telecommunications Act in its entirety. However, the last chapter (15) of the EC Act is a set of transitional provisions that basically ensures continuity while the new set of rules is put in place. The licence conversion process is one of these transitional provisions.
If you stand back and look at what is supposed to have happened, we should have moved from the old order (PSTS, MNOs, VANS etc) to the new order as fast as was practical. The new order has ECNS and ECS licences, and very, very clear guidelines for how they are to be issued (including the obvious point that you cannot just have 300 ECNS licences without a proper Invitation to Apply process, or there'll be no tar at all on the roads, never mind no spectrum, and eventually about 290 bankruptcies - there just isn't a business case for 300 separate infrastructures). Obviously, if some of these historical anomalies that out of line with the new order leak through the transitional provisions, the whole Act isn't really worth the paper it's written on, since we'd just be working under the Telecoms Act with a new name and a very confused set of rules. In part, this is Altech's point, and it's obvious why it has to be sorted out.
Whilst it's theoretically possible for people to gain (new) ECNS rights through the loophole of the conversion process, since the new rules and the old rules are different, it would completely undermine the EC Act in an administrative sense, since VANS do not currently have ECNS rights, according to the Minister and ICASA, who administer both the old and the new rules. After the conversion process, it is the prerogative of the Minister to decide how to invite applications for new licences, provided, of course, that it's fair, and doesn't discriminate (e.g. between IS and Altech, to quote the obvious example). I'm not sure I like this kind of power in the hands of the Minister, but there you have it.
Basically, in legal terms, VANS should not be trying to twist the interpretation of the EC Act to breaking point, if they want lots of new infrastructure licences, but should be lobbying for legitimate amendments to the Act, something that parliament should do, not ICASA, not the Minister, and not the courts. We have enough broken legislation in this country without trying to break more of it.
I don't agree with you there, and the establishment of [searchforum]"Dark Fibre Africa"[/searchforum] is a very good example of how 300+ ECNS licensees can coexist as far as fibre optic cabling and tar on the roads is concerned. In the case of DFA, DFA puts the conduit and dark fibre into the ground on behalf of DFA's customers, with enough space to add more dark fibre when requested to do so by customers new or old in the future without having to dig up the same patch of tar more than once.
Besides, some roads seem to have more potholes than actual tar - not much tar to start with IMO
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I'm not following you on the conversion loophole that you mention - what is the loophole to which you are referring?
The problem as I understand it, is that Poison Ivy decided to issue a ministerial policy decision proclamation back in 2004 saying that VANS would be allowed to self provision their own network infrastructure and that that would come into effect on 2005-02-01. This was done in accordance with the Telecommunications Act of 1996 which was still in effect until 2006 and gave Poison Ivy the right to make such a proclamation, however the Telecommunications Act does AFAIK not give Poison Ivy the right to backtrack on that same proclamation - which is exactly what she did on 2005-01-31.
The whole debate does not undermine the ECA at all IMO - it is the Telecommunications Act that was applicable at the time, and it is Poison Ivy that undermined her own credibility by backtracking, so in short it is Poison Ivy's credibility that should be called into question and not the ECA and not even the Telecommunications Act...
IMO VANS are not twisting the ECA at all - it's all about Poison Ivy who effectively broke the law according to the Telecommunications Act by backtracking when the Telecommunications Act did not give her the right to backtrack - she exceeded and abused her powers as Minister of Communications.
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ads
Senior Member
@ic
Unfortunately, at this point, the debate is not really whether there is a workable model. Obviously, it's possible to create a workable model, and there are plenty of liberal markets in the world. They just don't have our EC Act.
Let me give a simple counter example to show what the problem is:
Joe Bloggs cc has a VANS licence, which he got, not quite in a lucky packet, but which cost next to nothing, and has essentially no obligations whatsoever to build suitable infrastructure or to deliver services. The EC Act was designed to encourage major investment in the sector (and many of us contributed to its crafting, as we did to the Telecoms Act, even if we didn't necessarily like the final outcome). It typically sets the barrier for national ECNS investment quite high (around R100 million, based on precedent), but in return, gives very substantial rights to ECNS licensees.
Should all VANS suddenly acquire historical rights, Joe Bloggs cc will have the right to "enter upon any property" [and many more words in Chapter 4 of the EC Act] to build any telecommunications infrastructure he likes. Basically, you, I, and the rest of the taxpayers and voters who are supposed to benefit from this, can have our property, roads, spectrum etc dug up, filled up etc, by someone who has no obligations whatsoever, and for whom there is no hurdle actually to invest in anything that may be of any use to us.
Even worse (and you'll see now why the liberal interpretation of the Telecoms Act will fail), Sipho Zuma cc next door, who, by chance, didn't get a VANS licence in lucky packet when the Telecoms Act was around, will have to wait for an ITA from the Minister, and probably pay R100 million, after having submitted a comprehensive business plan showing what good he will do for the sector and the country. If not, the whole licensing process will be challenged again by those who already have licences that they paid for, and who did submit plans like this, and rightly so.
The loophole is not in the EC Act per se. It lies in the particular interpretation of the Telecoms Act that gives all VANS the rights of ECNS by default, and which become grandfathered and permanent through the conversion process. Essentially, reductio ad absurdum, as it were, this makes complete nonsense of the EC Act ECNS licensing process, as indicated.
The debate about whether or not we should completely deregulate telecoms infrastructure is a political one, and belongs in parliament, as I said, and not in the courts.
Whilst it sounds warm and fuzzy to deregulate completely, there are some realities in South Africa that don't make it quite so nice:
Unfortunately, at this point, the debate is not really whether there is a workable model. Obviously, it's possible to create a workable model, and there are plenty of liberal markets in the world. They just don't have our EC Act.
Let me give a simple counter example to show what the problem is:
Joe Bloggs cc has a VANS licence, which he got, not quite in a lucky packet, but which cost next to nothing, and has essentially no obligations whatsoever to build suitable infrastructure or to deliver services. The EC Act was designed to encourage major investment in the sector (and many of us contributed to its crafting, as we did to the Telecoms Act, even if we didn't necessarily like the final outcome). It typically sets the barrier for national ECNS investment quite high (around R100 million, based on precedent), but in return, gives very substantial rights to ECNS licensees.
Should all VANS suddenly acquire historical rights, Joe Bloggs cc will have the right to "enter upon any property" [and many more words in Chapter 4 of the EC Act] to build any telecommunications infrastructure he likes. Basically, you, I, and the rest of the taxpayers and voters who are supposed to benefit from this, can have our property, roads, spectrum etc dug up, filled up etc, by someone who has no obligations whatsoever, and for whom there is no hurdle actually to invest in anything that may be of any use to us.
Even worse (and you'll see now why the liberal interpretation of the Telecoms Act will fail), Sipho Zuma cc next door, who, by chance, didn't get a VANS licence in lucky packet when the Telecoms Act was around, will have to wait for an ITA from the Minister, and probably pay R100 million, after having submitted a comprehensive business plan showing what good he will do for the sector and the country. If not, the whole licensing process will be challenged again by those who already have licences that they paid for, and who did submit plans like this, and rightly so.
Besides, some roads seem to have more potholes than actual tar - not much tar to start with IMO
The loophole is not in the EC Act per se. It lies in the particular interpretation of the Telecoms Act that gives all VANS the rights of ECNS by default, and which become grandfathered and permanent through the conversion process. Essentially, reductio ad absurdum, as it were, this makes complete nonsense of the EC Act ECNS licensing process, as indicated.
The debate about whether or not we should completely deregulate telecoms infrastructure is a political one, and belongs in parliament, as I said, and not in the courts.
Whilst it sounds warm and fuzzy to deregulate completely, there are some realities in South Africa that don't make it quite so nice:
- From experience, the market is not really very big in global terms, with the result that serious infrastructure funding is difficult to get if there is high risk (e.g. many competitors, or, worse still, uncertain regulation). This is the reality of big infrastructure investment. Do you think SEACOM would be building a cable if everyone else was building one too? Theirs is a purely financial investment, and it only makes sense if it's a viable business.
- Markets that have followed the big bang approach have seen dramatic growth in competition, but not much more than managed liberalisation, when done properly - look at more or less every mobile operator market in the world, where the number of licences if rarely above four. If we do get a big bang, expect a lot of blood on the floor, and ironically, that the big get bigger and the small get hurt.
- There has been a sea change in policy in the ruling party, moving towards an less open market approach. This is not necessarily wrong in a developmental society, but that's a different political debate. What it does mean is that you are fooling yourself if you think that a liberal free market model is simply going to be encouraged by the policy makers. Whilst it's possible to win the argument legally, the law can always be changed if the outcome is wrong. Personally, I'd rather live with a slightly flawed EC Act than have Sentech, Infraco and the NEPAD cable be the only competition in the market.
The_Unbeliever
Honorary Master
I hope that Altech gets a favourable response from the courts.