Startling twist in ICASA “leak” case

Telkom has rubbished a media report which suggested that a written interim order from the Complaints and Compliance Committee (CCC) of the Independent Communications Authority of South Africa (ICASA) was in the public domain.

The interim order in question deals with the CCC’s findings on a complaint brought to it, regarding Neotel’s denied attempt to access Telkom’s last mile infrastructure (or local loop).

ICASA isn’t willing to state whether or not the document was confidential until it has completed its investigation into the matter. A legal expert told MyBroadband that there is reason to doubt that the document was confidential in the first place.

Speaking to MyBroadband, a Telkom spokesperson went on to say that it has reason to believe that the document was leaked to the Internet Service Providers’ Association (ISPA).

Last week (3 August 2012), a Business Day article said that Councillor William Stucke is the alleged source of the leak, which Telkom responded to in a harshly worded statement on Wednesday (8 August 2012).

William Stucke, taken by Rodney Jones at iWeek 2006
William Stucke, taken by Rodney Jones at iWeek 2006

Responding to questions put to it by MyBroadband, Telkom provided the following statement:

Telkom would like to point out that the Company did not “attack ICASA” as the TechCentral article stated but merely reacted to a press article (Business Day, 3 August 2012) that made a serious allegation against an ICASA councillor, which, if true, would have serious repercussions for the industry and Telkom in particular as a directly affected party. Hence our expression of dismay and request that the matter should be appropriately addressed by ICASA.

Telkom went on to say that the facts of the case are as follows:

  1. The CCC was requested by the Council of ICASA to hear a complaint by Neotel that Telkom refused their request to provide them with unbundled local loops. The CCC must submit its finding and recommendations to [ICASA] for a decision regarding the action to be taken by the Authority.
  2. On 18 May 2012, at the end of a hearing, the CCC announced their findings and made some recommendations to the parties. Telkom requested the CCC that a written “order” and the reasons thereof be made available to the parties. The CCC said the order was not available at that stage and would be made available in due course. This is a matter of public record.
  3. To date Telkom has not received the written “order” from the CCC or ICASA. Obtaining the record is critical for Telkom to understand the scope of the CCC finding and recommendations.
  4. On 18 June Neotel wrote to ICASA seeking to have an order, that they claimed to have obtained from ISPA, enforced by ICASA. Neotel’s letter shows that they also had not been given any Order by the CCC or ICASA.
  5. It is our understanding that the order obtained from ISPA is the leaked order mentioned in the Business Day article published on 3 August 2012.

Telkom said that it is still waiting for the written document from the CCC, which must be given within 90 days from 18 May 2012 (which is next Thursday, 16 August 2012).

“Telkom has not been placed in a position to consider its options since the text of the CCC finding and recommendations to ICASA, or the decision of ICASA on the matter, remain unavailable and uncommunicated from CCC or ICASA,” Telkom said.

ISPA confirmed that it had distributed the order to the working group within ISPA dealing with LLU of which Neotel is a member, but said that there was no reason to believe that the written order was confidential.

“The Complaints and Compliance Committee had given its order in the dispute between Telkom and Neotel in public and in the presence of Telkom and Neotel representatives as well as members of the press,” ISPA said. “There was accordingly no reason to believe that the written confirmation of such order was confidential given that the terms of the order were already in the public domain.”

Asked whether the document should be considered confidential and whether ICASA should have made the document available to Neotel and Telkom already, ISPA said that the CCC would need to clarify their position in this regard.

ICASA provided the following statement when approached for comment:

The allegations of the leaking of information has been brought to the attention of the Authority and an investigation has been commissioned in that regard. The Authority will provide further details as soon as the investigation has been fully concluded.

Kathleen Rice
Kathleen Rice

Kathleen Rice, director of technology, media, and telecommunications at law firm DLA Cliffe Dekker Hofmeyr, said that under the ICASA Act the document should have been made available some time ago.

Rice said that she could understand that Telkom and Neotel would be upset that they weren’t given formal notification, or had not been sent the document by the CCC.

However, Rice also noted that the document is just a written confirmation of a verbal order that the CCC gave in May when it heard the complaint.

“The CCC must keep a record of complaints and notices and must make these available to the public in any event,” Rice noted. The document isn’t marked confidential either, Rice added.

Rice concluded that she didn’t see this as a confidential document, and that she doesn’t see that anyone suffered any prejudice as a result of it being distributed.

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Startling twist in ICASA “leak” case