Altech Autopage recently launched legal action seeking a court ruling which would confirm its right to self provide its own network under its Value-Added Network Service (VANS) licence. A successful bid means that Altech Autopage – and all other VANS licensees – should receive Individual ECNS licences from ICASA.
“The court application seeks to clarify the rights of VANS licensees to have their licences converted to I-ECNS which would allow them to build and own their own networks should they choose to do so, as they will no longer need to rely on the infrastructure of other network operators like Telkom and Neotel,” Altech stated.
“In Altech’s view the law obliges ICASA to convert the VANS licence to an I–ECNS. Altech does not believe that ICASA can cherry pick the number of I-ECNS licences that it awards to VANS. It believes that these licences should be converted. If successful, the litigation will open the South African market to enhance competition,” the company said.
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."
According to Altech a media statement is not binding and this statement is further in conflict with Icasa’s internal documents stating that VANs can self provide.
The Department of Communications and ICASA fought back, saying that value-added network service licensees were never given the right to provide their own networks.
Matsepe-Casaburri’s lawyers described the minister’s wording in her 2004 ministerial directive as "unfortunate", saying that 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.
The court ruled in favour of Altech Autopage, which means that any VANS license holder effectively had the right to self provide since 2005.
This in turn means that all VANS license holders should automatically qualify for an Individual ECNS license under the new Electronic Communications Act (ECA) since no license holder under the old system should lose any rights under the new act.
This means that all current VANS license holders will have the same license under the new ECA as Telkom, Neotel, Vodacom, MTN, Cell C, iBurst and Sentech.
If all VANS licensees do indeed receive Individual ECNS licenses it will mean an immediate leveling of the telecoms playing field regarding rights to provision networks and telecoms services. The focus will then most likely move towards spectrum allocation – the main differentiator regarding the ability to roll out a wireless network cost effectively.
Full judgment available here: http://www.ellipsis.co.za/?p=239
ICASA statement here: http://mybroadband.co.za/vb/showthread.php?t=133370