Telkom will today file an application with the Pretoria High Court for a full judicial review of a ruling the South African Telecommunications Regulatory Authority (SATRA) made in June.
The ruling, in a complaint brought by value-added network service (VANS) providers through the SA VANS Association (SAVA), denied Telkom the right to withhold facilities or services from VANS providers without regulatory approval, and ordered the company to fulfil backlogged orders within 45 days.
Telkom withheld additional services from the operators in the culmination of a three-year dispute, saying the operators were flaunting its exclusivity by reselling facilities provided to them.
SAVA called the ruling a landmark victory and predicted that individual operators would institute claims against Telkom for damages suffered.
Instead Telkom will be going to court, to challenge the ruling on procedural grounds.
Forced action
Telkom COO Tom Barry said today at a press conference that the application would be based on the procedure SATRA followed at the hearing into the matter. He said Telkom was not given a chance to present its evidence, no SATRA councillor was involved in the hearing and SATRA failed to address the legal issue at the core of the matter.
Barry said Telkom has been forced to turn to the courts again because applications to SATRA had not gotten anywhere. "We are not interested in being the telephone police. We are not interested in instituting these unilateral actions," he noted.
But Telkom says it has filed six complaints with SATRA, none of which have been addressed to date, despite the fact that some are years old. "It got to the point where we said to ourselves 'this is not getting us anywhere`," said Barry.
He expressed a personal opinion that SATRA and its councillors had been philosophically biased against Telkom. "Our complaints have been studiously and consistently ignored because SATRA doesn`t want to rule in Telkom`s favour." He added that it appears SATRA did not think upholding Telkom`s lawful exclusivity would be in the best interests of the country or its people.
According to Telkom, the Telecommunications Act and its licence are quite clear on the issue of re-sold services. No operator is allowed to resell any facilities obtained from Telkom, which is the only company allowed to provide such facilities. "The customer who takes the facility from Telkom is the only one that can use that facility," Barry said. VANS, and in particular virtual private networks, do exactly that, he argued.
New complaint
As an example of such reselling, Telkom will file a new complaint with the Independent Communications Regulatory Authority of SA (ICASA), SATRA`s successor. "This case is a clearer, easier to understand issue than we have ever had before," said Barry.
The complaint involves two VANS operators Telkom declined to identify but called "well-known". One is reselling capacity to the other, it said, and the buyer is completely dependent on the seller as it has no Telkom-supplied infrastructure to its Sandton-based datacentre.
The buying operator has had "full and frank discussions" with Telkom, Barry said, as it wanted to switch to above-board Telkom infrastructure but was tied to its supplier by a cancellation fee of "millions of rands". The buyer had supplied Telkom with details of the networks involved, and Telkom will be basing its complaint on this information.
Barry would not go into detail about the relationship between his company and the informant operator, but said that action would be taken only against the offending supplier.
SAVA could not immediately be reached for comment, but earlier expressed regret that Telkom had decided on an appeal.
"SAVA firmly believes that SATRA conducted the hearings in a fair and impartial manner, particularly in that it ensured that only the matter due to be discussed was allowed to be tabled," SAVA chairman Mike van den Bergh said in a statement.
Telkom cannot act as regulator by withholding services, he said. "There can only be one industry regulator and, for the greater good of the industry, it is essential that all concerned recognise this regulator to be ICASA and its predecessor SATRA."
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