ICASA, DoC under fire
Altech Autopage Cellular recently embarked on legal action involving ICASA, the Chairman of ICASA, the Minister of Communications and numerous ISPs and telecoms providers.
In a High Court document Altech Autopage Cellular states that it intends to make an application on the 13th of May to obtain an interdict restraining ICASA from continuing with its current license conversion process.
The company further asked for ICASA to be restrained from granting selected VANS licensees the right to acquire individual ECNS licenses.
Altech Autopage Cellular further states that the Ministerial Policy Directives published in Government Gazette 30308 dealing with, among other things, VANS license conversions, is beyond the minister’s powers and accordingly of no force and effect.
Altech Autopage Cellular said that ICASA is obliged to convert its VANS license into individual ECNS and ECS licenses.
Many other legal issues are touched upon by Altech Autopage Cellular in its legal document, while 26 current VANS licenses and companies who are involved in the license conversion process are part of this case.
Dominic Cull, a specialist in VANS regulation, pointed out that there is no direct legal action against these VANS licensees but that they have been named as respondents because they have an interest in the matter.
“These VANS have been cited to avoid a situation where one or more of them may later decide to join in the application, possibly delaying the matter, which has been brought as a matter of urgency.”
He also pointed out that this is the second application to be launched against the Minister and ICASA in the last two weeks regarding the rights of VANS licensees.
“Under the licence conversion process set out in the ECA, ICASA is required to convert licences on ‘no less favourable terms’. What these applications are about, in essence, is obtaining certainty with regard to what exactly the existing rights of VANS are, something which ICASA has been very reluctant to do.”
“If you are going to convert on no less favourable terms then it is only logical that you have to know where you are coming from before you can settle on your final destination.”
If successful this case can turn the South African telecoms market on its head presenting all current VANS licensees with a strong argument to be awarded individual ECNS and ECS licenses. This is exactly what Altech are asking for with regard to their own VANS licence.
The self provisioning of VANS is a long-standing, unresolved legal issue which has cast a shadow over the industry since the Minister of Communications laid out her policy directives in September 2004 stating that these license holders can self provide.
ICASA has also been mum on the issue until recently, but on 17 March 2008 ICASA Councillor Marcia Socikwa said that ICASA’s position was that there were no infrastructure rights attached to VANS licences and that they were accordingly not entitled to self-provide.
This stirred up a hornet’s nest – although ICASA had to take a stand at some stage – and legal action was unavoidable.
Cull notes that, despite Councillor Socikwa’s statement, there have been conflicting messages from within ICASA, with senior members of the Authority indicating that they believed her words had been “misinterpreted” or “misunderstood”.
The latest high court action from Altech Autopage Cellular can be described as very aggressive, and will most likely be the watershed case in the local telecoms license conversion debacle.
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