Deadline schmeadline

The South Africa LLU process started in 2006 when then Minister of Communications, the late Ivy Matsepe-Casaburri, announced the appointment of the Local Loop Unbundling Committee, chaired by Prof. Tshilidzi Marwala.

The committee finalised policy and regulatory recommendations in May 2007 to consider the best model for a successful local loop unbundling (LLU) process. The minister then made a policy decision that the unbundling process should be implemented and completed by 2011.

Marwala said in mid-2007 that the LLU process will be completed in 2011, adding that this should not be mistaken with giving Telkom another four years of monopoly.

“Unbundling of the local loop is not an event but a process and therefore it takes a certain period of time and we expect four years to be a reasonable frame,” said Marwala.

Marwala said that he believed that “by the end of 2007 all the mechanisms will be in place for Telkom to open up the local loop to rivals.” Marwala further said that he expected Telkom to start giving rivals access to its copper infrastructure by January 2008.

Tshilidzi Marwala

Here and now

Fast forward four years to ICASA’s unveiling of their local loop unbundling discussion document today (22 June 2011), and one may be mistaken for thinking they have been transported back to 2007.

ICASA said that its plan with the document is to establish which LLU model is best suited for South Africa through a national debate on any regulatory action on LLU.  This sounds strangely similar to the 2007 LLU process.

When quizzed about the looming November 2011 deadline for LLU, ICASA said that they will publish their LLU regulations within this time frame and hence meet the deadline set by the Department of Communications.

Are LLU regulations all that were envisaged by November 2011, back in 2007?  The answer is no!

Marwala stated clearly that “the LLU process will be completed in 2011” and that “this should not be mistaken with giving Telkom another four years of monopoly”.  This is why the implementation of LLU should have actually started by 2008 to meet the deadline.

Ivy Matsepe-Casaburri

When asked about the fact that it is not the regulatory process which should be completed by November 2011 but actually the implementation of LLU as mentioned by Marwala, ICASA answered by saying that they follow policy directives from the Communications Minister and not Marwala.

However, in ICASA’s own LLU discussion document they quoted the late Minister of Communications Ivy Matsepe-Cassaburi’s policy directive to the regulator:

“I have also taken the policy decision that, given the complexity of local loop unbundling process on the one hand and the urgency for South Africa to enable all operators appropriately licensed to have access to the local loop on the other hand, the unbundling process in South Africa should be urgently completed and implemented by 2011. In addition, the Authority should urgently and as appropriate, take advantage of the report of the Local loop unbundling committee and its recommendations on the proposed unbundling models and ensure that we achieve the 2011 deadline.”

The initial policy directive clearly stated that the unbundling process in South Africa should be implemented by 2011, and it may therefore be a play on words from ICASA to try to avoid the fact that very little has happened regarding LLU over the last four years.

Roy Padayachie

At the end of 2010, Communications Minister Roy Padayachie said in his first media briefing: “The unbundling of the local loop remains a critical and important intervention. In this regard we will work closely with ICASA to ensure that the local loop is unbundled by November 2011.”

If ICASA admits that LLU will not be implemented by November 2011 as envisaged in 2007, they not only concede failure on their side, but also show that Padayachie did not meet his promised LLU deadline.

It is therefore better for the regulator to claim LLU success despite the fact that it took them four years to produce a simple discussion document.

Even watered down deadline is challenging

Questions have also been raised as to whether ICASA can meet the November 2011 deadline  – even if it is limited to their interpretation that it relates to the regulatory process only.

ICASA councillor Thabo Makhakhe said that they will publish their final LLU regulations by November 2011, but Internet Solutions’ regulatory director Siyabonga Madyibi questioned the deadline considering the legal processes which must be followed.

ICASA asked for written submissions about the LLU discussion document by 14 September 2011, after which public hearings will take place. Then draft regulations, feedback about these regulations and final regulations need to be produced.

Considering that ICASA interpreted the Minister’s calls for LLU to be “urgently completed” as taking close to four years to produce a discussion document, Madyibi may have good reason to doubt that the LLU regulations will be published by November 2011.