[ Johannesburg, 2 October 2008 ] - ALTECH AUTOPAGE Cellular's successful legal bid to challenge adjudication of new individual Electronic Communications Network licences (i-ECNS) provided many in the South African telecoms industry with the hope of true liberalisation in the market – something the industry has been waiting for since the inception of the Electronic Communications Act (ECA). The announcement of the court ruling sparked a wave of celebrations among various telcos who were looking forward to the benefits the i-ECNS licences would provide them, including the rights to self-provide and/or apply for WiMax spectrum.
While the news of the High Court judgement was widely welcomed, and was considered by many a landmark ruling, the industry's celebrations were tempered by the climate of uncertainty still surrounding ther aspects of the ECA yet to be promulgated. However, when the Independent Communications Authority of SA (Icasa) announced its decision not to apply for leave to appeal to the Supreme Court of Appeal against the judgment of the High Court, many industry players looked forward to a more competitive telecoms landscape. John Holdsworth, CEO of ECN, was quoted as saying: "You always celebrate when you win the lottery. We never expected Icasa not to contest the decision. We are celebrating the right to all the regulatory enablers we now have access to."
The telecommunication industry's joy was short-lived, however, with the recent announcement that Communications Minister Ivy Matsepe-Casaburri lodged an appeal against the High Court judgment, causing many to question the future of liberalisation in the South African market.
THE LEGALESE
This type of mixed messaging from the Department of Communications (DOC) is nothing new. Minister Matsepe-Casaburri made a ministerial determination in 2004 indicating that value-added network service providers (Vans) would be able to build their own networks, and Icasa interpreted the determination as confirmation that Vans would be able to self-provide. However, the minister later said she had never intended this to be the case.
Now, the DOC is making a similar "flip-flop", arguing that if Vans licensees are allowed to obtain i-ECNS licences under the licence conversion process, "government's managed liberalisation policy will be seriously undermined,to the detriment of the ICT industry". A statement issued by the minister's spokesperson adds: "In addition, the minister will commence a process to issue a policy direction to Icasa, in terms of section 3, read with 5(6) of the Electronic Communications Act (ECA), directing Icasa to issue an invitation to apply for a number of new individual-ECNS licences, in accordance with the implementation of the managed liberalisation policy."
Section 5 (6) reads: "In consideration of the implementation of the managed liberalisation policies, the authority may only accept and consider applications for individual-ECNS licences, in terms of a policy direction issued by the minister in terms of section 3."
"The Department of Communications," the statement continues, "will also expedite an amendment of the ECA to remove any ambiguity around managed liberalisation and to make it clear that value-added network service licensees are not entitled to individual ECNS licences under licence conversion."
CHANGING THE RULES
Many industry players are now asking themselves exactly what ambiguity the statement is referring to, as the intent of the ECA is clear: to liberalise and allow competition. The upshot of the statement from the DOC is that in addition to appealing the Altech judgment, the minister will be issuing new policy directions to Icasa regarding licensing and asking Parliament to amend the ECA to give effect to the interpretation of the ECA that was dismissed in the Altech judgement.
Lisa Thornton, of legal fi rm Lisa Thornton Inc, points out that the minister's announcement that she will issue policy directions asking Icasa to licence certain type of i-ECNS licences is an issue different to the right of existing Vans licensees to obtain ECNS licences in the conversion process. "The judge in the Altech judgment correctly interpreted the law as it is," she says. "The minister, however, has announced that she will ask Parliament to amend the law – presumably to take away Vans licensees' rights to ECNS licences in the conversion process? There is likely to be more confusion before clarity, continuing the benefi t to incumbents."
