Vodacom has questioned the legality of the Independent Communications Authority of SA`s (ICASA`s) draft interconnection regulations and the powers they give the regulator.
ICASA heard during the hearings on interconnection regulations yesterday that the draft interconnection regulations in their current form could be subject to legal challenge.
A Vodacom delegation led by Shameel Joosub, Vodacom SA MD, presented arguments that explained why the draft interconnection regulations published in January 2005 were unlawful and invalid.
The mobile operator recommended that ICASA withdraw the draft regulations, wait for the promulgation of the Electronic Communications Bill and commission a market study to prove market failure before embarking on an interconnection regulatory process.
The second national operator (SNO) delegation, led by MD Ajay Pandey, agreed on some aspects of the presentation. It pointed out issues that would be subject to legal challenge in the regulations and submitted a document outlining strategies for ICASA to address the legal hurdles.
Pandey urged the regulator to proceed with the interconnection regulatory process, as a framework was needed to ensure competition in the telecoms market.
Key arguments
Joosub challenged the legal authority used to interpret the draft interconnection regulations, noting the current Telecoms Act was the only legal basis for interpreting them. He also noted that Vodacom had problems with the content of the regulations, as they incorporated the same text as the previous draft.
He also argued that the powers granted to ICASA by the draft regulations exceeded those provided for by the Telecoms Act, and that this was unlawful.
Joosub said ICASA`s authority was limited to approving lodged interconnection agreements and resolving negotiation disputes at the request of the negotiating party. ICASA was also authorised to prescribe guidelines relating to the form and content of interconnection agreements.
Margo Stoeder, Vodacom executive head of department for market regulations, argued during the question and answer session that guidelines are recommendations that cannot be legally enforced, while regulations are part of the law. As such, ICASA`s role is to provide guidance regarding the form and content of interconnection, not to regulate that aspect of interconnection.
SNO offers advice
Representing the SNO as regulatory advisor, Carla Raffinetti, an attorney with Edward Nathan Attorneys, said the SNO would prefer a more thorough overhaul of the regulations, as there were conceptual problems with the draft regulations. However, she disagreed with Vodacom about the scope of the regulations and said they fall within the law.
Raffinetti`s presentation also provided a point-by-point review of issues that she said could be subject to legal challenge. She urged ICASA to ensure the interconnection guidelines satisfy provisions that relate to competition as per the competition law, and that issues related to administrative law and the Promotion of Justice Act were in accordance with those laws.
"The guidelines should fall within the parameters of the law, otherwise review applications causing further delays will result," she said.
ICASA councillor Tracy Cohen noted that the SNO submission would be published on the ICASA Web site. She invited the public to comment within seven working days.
ICASA will hear presentations for telecoms stakeholders regarding facilities leasing guidelines starting today.
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