Telkom attacks CCC authority, ADSL Regulations
Telkom has attacked the ICASA Complaints and Compliance Committee (CCC), saying that it “lacks authority and jurisdiction to hear the matter” regarding the company’s non-compliance with the ADSL Regulations.
Non-compliance not an offence?
Advocate NGD Maritz, acting on behalf of Telkom, started his defending argument by saying that the ADSL Regulations do not declare any contravention of any regulation to be an offence.
“Neither the Electronics Communications Act (ECA) nor the ICASA Act provides that non-compliance with the regulations made by ICASA will constitute an offence, nor does either Act stipulate any sanction for non-compliance with a regulation,” Telkom submitted in its official response to the CCC.
The hearing Chairman, retired Judge De Villiers, however pointed out that non-compliance of regulations made by ICASA is a contravention of the ICASA Act, something which Maritz said was an oversight from their side and which they accepted.
Telkom says CCC lacks authority
Maritz then argued that the ICASA Committee lacks authority and jurisdiction to hear the matter concerning an alleged breach of the ADSL Regulations by Telkom.
Telkom submitted that alleged non-compliance with regulations made by ICASA in terms of an authority granted to it by the ECA is not an alleged non-compliance with the ECA itself, and such non-compliance does not fall within the ambit of the committee’s authority.
“The ADSL Regulations are not statutory law such as the ECA, but constitute subordinate legislation made by ICASA … the Committee accordingly has no jurisdiction or authority to investigate or deal with the compliant that Telkom is in breach of Regulation 3.4 of the ADSL Regulations,” Telkom said in its official submission.
Maritz further said that even if the ICASA CCC had the authority to deal with the matter, that it did not follow due process as it did not afford Telkom ‘a reasonable opportunity to respond to the allegations in writing’.
“Accordingly, the Committee has no authority or jurisdiction to hear the matter, and may not do so and until is has afforded to Telkom a reasonable opportunity to respond to the complainant’s allegations in writing.”
The chairman of the hearings however pointed out that this issue had been dragging on for a very long time and that Telkom should be able to easily address the relevant issues at the hearings.
Telkom questioned the legality of such a process, but after deliberations the hearings continued to address Telkom’s non-compliance with the ADSL regulations.
Non-compliance
Telkom argued that the complaint revolved around the measuring of local and international traffic which is counted towards a monthly cap, something which the company says falls within the legal requirements of the regulations.
The capping of local bandwidth was not explicitly addressed, but Telkom did submit that it plans to provide uncapped – but not free – local bandwidth on its ADSL service for which subscribers will be billed.
Poor regulations?
Telkom however criticized the regulations, saying that the term ‘cap’ is not defined in the ADSL Regulations and that it would be impossible to either interpret or apply the regulation with regards to any ‘cap’.
“Although there is a strong argument which could be made out that a number of regulations, including Regulation 3.4, are so vague that they are rendered void and unenforceable, this is not the forum for determination of that issue,” Telkom said.
Regulation 3.4 states that “Local bandwidth usage shall not be subject to a cap”.
“Regulation 3.4 is clearly ambiguous,” Telkom said. “As Regulation 3.4 seeks to limit the rights of Telkom … ICASA and the Committee are bound in law to give Regulation 3.4 that interpretation most favourable to Telkom”
Telkom continued to give various possible interpretations of the regulations, and concluded that “there is no reasonable, rational or justifiable basis on which the Committee can find that the interpretation of Regulation 3.4 by Telkom is untenable. Accordingly the Committee cannot properly find that there has been a non-compliance with Regulation 3.4.”
A ruling on Telkom’s non-compliance regarding the ADSL regulations will only be made at a later stage. The councilor in charge of the CCC is Councilor Van Rooyen who will ultimately be responsible for this decision.
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