ICASA, DoC versus the VANS
The court case in which Altech Autopage seeks a court ruling which will confirm its right to self provide its own network under its Value-Added Network Service (VANS) licence is expected to conclude soon.
If Altech is successful it may see all VANS licence holders receiving Individual ECNS licences giving them the same rights as operators such as Telkom, Neotel, Vodacom and MTN.
Should this occur it will result in a sudden liberalisation of the telecoms industry. The legal action may, however, hold up of the already slow licence conversion process, something which has got many players hot under the collar.
Some ISPs, including Internet Solutions and Vox Telecom, have criticised Altech, hoping that the court action will be dismissed.
Where the mess started
On 3 September 2004 the minister of communications, Dr. Ivy Matsepe-Casaburri, published various determinations as per the Telecommunications Act. One of these determinations was that “VANS may self-provide facilities from 1 February 2005”.
ICASA, after holding workshops and calling for industry input, released an official statement that “VANS may self-provide facilities from 1 February 2005. Self-provision contemplates the procurement of telecommunication facilities by a VANS licensee from any telecommunication facility supplier and to use them under and in accordance with its licence to provide telecommunication services.”
In an 11th hour statement from the minister at the end of January 2005 she clarified her determination, saying that “the issue of self-provisioning was issued in the government’s policy determinations only in relation to mobile cellular operators in terms of fixed links, to give full meaning to the intention to reduce the costs of telecommunication services in SA. It is the intention that value-added network operators may obtain facilities from any licensed operator as specified in the determinations."
ICASA, DoC fights back
In the Altech court case, ICASA and the department of communications argued that the value-added network service licensees were never given the right to provide their own networks.
The wording "VANS may self-provide facilities from 1 February 2005" is however rather clear cut, and here Matsepe-Casaburri’s lawyers said that the wording in the ministerial directive was "unfortunate".
According to a recent Fin24 article “the minister has said it was never her intention to follow a ‘big bang’ approach to the liberalisation of the telecoms market. Rather, it had consistently followed a ‘managed liberalisation’ approach, of gradually freeing up the market.”
ICASA policing continues
Despite the court action and licensing delays, ICASA continues to actively police the airways and has shown its teeth recently.
ICASA said that recent routine monitoring and inspection revealed that Internet Solutions was allegedly operating illegal wireless links in the 24GHz band and that equipment that was not type-approved was used to operate this network.
This resulted in inspections of both the COMSOL and IS premises resulting in the confiscation of some equipment. According to ICASA documentation this included the confiscation of non-type approved equipment used to operate a network in the 24GHz band.
COMSOL managing director, Iain Stevenson, said that ICASA had confiscated equipment from the company’s premises but that this would be returned soon.
Stevenson said that they received a letter from ICASA in which the authority admitted that the search warrant was improperly issued and that all equipment would be returned by ICASA “as they did not have the right to confiscate it in the first place”.
This event is, however, not an isolated one, and the battle between VANS – typically using wireless networks to self-provide – and ICASA has been raging since February 2005.
Delays forcing self-provisioning?
Some industry players feel that ICASA’s delay in the licence conversion process and allocating spectrum to additional Individual ECNS licensees is forcing companies to start building their own wireless networks in unlicensed frequency bands to serve customers.
At the recent Internetix conference in Johannesburg it became clear that there was an acute shortage in transmission capacity and Telkom’s ability to provide clients with adequate backhaul links to serve their clients.
This raises the question whether it is not preferable for VANS to use wireless networks to serve their clients now rather than wait for what has already proven to be a very lengthy licence conversion and frequency allocation process.
It has also long been the position of the Wireless Access Providers Associations (WAPA) that all VANS are allowed to self-provide as long as these providers use unlicensed spectrum.
Internet Solutions points out that ICASA has been considering the reallocation of the frequency spectrum for more than three years since the promulgation of the ECA and there remains industry uncertainty and frustration as to the final allocation of spectrum as well as the technologies which will ultimately be approved by ICASA.
“In the interim, ICASA has attempted to regularise the industry on an ad-hoc basis and there remains confusion as to the status of the 24GHz band,” IS said.
It is clear that there is a desperate need for ICASA to conclude the licence conversion process, licence new Individual ECNS players and allocate spectrum to some of these new players as a matter of urgency.
The lack of competition in the fixed line arena has hurt South African telecoms and resulted in a situation where many operators, including Neotel, MTN and Vodacom, are scrambling to make up for inadequate bandwidth supplies by building their own fibre networks.
More infrastructure players, both in the wired and wireless markets, will go a long way to increase competition and ultimately decrease prices through bringing relief to the current bandwidth shortage in the country.
VANS self-provisioning discussion
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