Hard-won network operator rights under threat
The South African Minister of Communications, Dina Pule, has proposed amendments to the Electronic Communications Act (ECA) that would allow ICASA to limit the rights of network operators, particularly the ability to self-provision infrastructure.
“Following the Altech judgement, a significant number of former Value Added Network Service [VANS] licenses were converted to ECNS licenses with accompanying right of way rights under Chapter 4,” the Ministry of Communications said in a memorandum accompanying the ECA Amendment Bill of 2012.
Chapter 4 of the ECA, among other things, affords electronic communications network service (ECNS) licensees the ability to roll out their own infrastructure. A practice referred to as “self-provisioning” in the industry.
The “Altech judgement” mentioned by the Ministry refers to a victory in the Pretoria High Court for Altech that forced the Independent Communications Authority of South Africa (ICASA) to convert Altech’s VANS license to an individual ECNS and an individual ECS license.
Before the ruling ICASA had considered only converting five VANS licenses.
Dina Pule
Explaining its reasoning behind the proposed change to self-provisioning rules, the Ministry stated:
The section 20 amendment seeks to limit the application of Chapter 4 to specific ECNS licensees as prescribed by the Authority since it is currently impractical; it also seeks to make better provision for the regulation of ECNS licensees that exercise any rights and obligations under this Chapter.
However, the proposed changes seem like a way to just return things to the way they were before Altech’s landmark court victory in 2008, when the Minister and ICASA could cherry-pick which licensees were allowed to self-provision.
Dominic Cull
Dominic Cull, a telecommunications lawyer at Ellipsis Regulatory Solutions, specialising in regulatory issues in electronic communications law, said that this part of the proposed amendment is bound to be contentious.
Cull said that the problem the Minister seeks to address is better dealt with through the existing rapid deployment guidelines and by completing the work set out in the original ECA.
The fact that there are no rules around open access, infrastructure sharing, or co-ordination between operators is a failure on the part of both the Department of Communications and ICASA, Cull said.
Cull added that it is legally problematic to take away rights that licensees currently enjoy through an amendment.
The Minister has invited comment on the proposed bill which must be received in writing within 30 days of its publication in the gazette (17 August 2012).
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