Icasa, minister fight back

Johannesburg - Legal teams for SA telecoms regulator, Icasa, and the Minister of Communications, Ivy Matsepe-Casaburri, argued in the Pretoria High Court on Wednesday that the value-added network service licencees (vans) were never given the right to provide their own networks.

As a result, Icasa asked the Judge, Justice Davis, to dismiss Altech Autopage's legal action with costs.

The nub of the dispute Altech has brought to bear is that it should have the right to build its own network in order to supply internet-based services. Icasa and the SA government are arguing that newly enacted telecommunications legislation always provided for a limited number of licences. As matters stand, Icasa grants the licences.

It's a complicated issue, but under the new telecommunications act, vans become known as electronic communications services licencees (ECS).

More detail

Altech believes that the vans were given the right to build their own networks from 1 February 2005, as per a "ministerial determination" made in September 2004.

It also believes that its vans licence should be automatically converted into an individual electronic communications network service licence (i-ECNS), instead of being part of the competitive process that Icasa has been holding to determine which vans will be awarded such licences.

Icasa put that process on hold pending the outcome of Altech?s legal action.

Interestingly, however, Matsepe-Casaburri's legal team conceded that the wording of the September 2004 ministerial directive - which created all the confusion in the first place - was "unfortunate".

Now, however, the minister has said 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.

Icasa itself had originally interpreted the "ministerial directives" as giving the vans the right to so-called "self-provide", which is to install their own networks.

Icasa changed its tune at a later stage, however. It subsequently argued that the vans never had the right to self-provision.

Both Icasa and the communications department (DoC) claim the extent of the "ministerial directive" was to allow other licensed operators (which did not include the vans), aside from Telkom and Neotel, to provide telecoms network facilities.

Digging 'free-for-all'

If Altech's application succeeds, then all the other vans would get the right to self-provide their own networks as well.

If it fails, then Icasa could seemingly return to the competitive process of allocating on a select number of vans with a licence to roll-out their own networks. The other vans would then only be entitled to electronic communications services (ECS) licences.

Icasa argued that it would produce an "absurd" result to allow all 600-odd vans licencees to roll out their own networks on the basis that the spectrum - frequency required in order to roll out a wireless network - was scarce.

The DoC said this would give all the vans the right to dig up the roads because self-provision could also mean the more expensive fixed-line option.

Altech had argued on Tuesday that Icasa could not use this argument, because not all the vans would elect to take up that right to self-provide.

Those that wanted to roll-out wireless networks would anyway have to apply, in a separate process, for frequency.

Both opposing parties argued that in terms of the legislation, no applicant could offer a service without a licence to do so. Getting a licence was subject to a process of being invited by the minister to apply, and Icasa then hearing and adjudicating on these applications, including holding public hearings.

Icasa's legal team said one could not simply "get a licence like a sphinx rising from the ashes as the day comes" (on 1 February 2005), as they contend.

Don't undermine Icasa

The DoC also warned the court not to take over the power conferred on Icasa to issue telecoms licences or it could see 599 other vans knocking on its door for licences.

While most of the vans support Altech's application in principle, some believe it has come too late.

Asked how long the judge might deliberate, Altech's group legal and commercial manager Tyrone Reis, said a few days or months as such processes were unpredictable. But, Altech hoped it would be "sooner rather than later" owing to the national importance of the matter.

Dimension Data's Internet Solutions and Irene Charnley's Smile Telecommunications have also opposed Altech's application and will have their chance to argue against it on Wednesday afternoon and on Thursday.

- Fin24.com