Frustrated value-added network services (VANS) have turned to the courts to force the Independent Communications Authority of SA (ICASA) and communications minister Ivy Matsepe-Casaburri to clarify self-provisioning.
Yesterday, an industry representative body, the Wireless Access Providers Association (WAPA), and one of its members, Amobia, filed papers in the Witwatersrand Local Division of the High Court. This is an attempt to obtain definitive clarification on an issue that has dogged the VANS sector for the past four years: whether providers are allowed to build their own networks.
The question is seen as central to the issue of reducing telecommunications costs and increasing economic investment by opening up the market to a number of smaller players.
Furthermore, ICASA is conducting a licence conversion process of all the licences issued under the Telecommunications Act to those viable under the new Electronics Communications (EC) Act. WAPA believes the former legislation allowed VANS to self-provide and so should regulations that are to be drawn up under the new law.
In contention
WAPA contends that, should the court rule that VANS were allowed to self-provide under the old Telecommunications Act, then they should have the same rights under the EC Act.
The association wants VANS to have electronic communications network service (ECNS) licences and electronic communications service (ECS) licences in terms of the EC Act. This would allow the smaller VANS to have the choice as to whether they want to build their own networks, particularly in municipal areas outside of the metropoles.
According to the court documents, ICASA is mentioned as the first respondent and Matsepe-Casaburri as the second, and no financial restitution is being demanded of either. If either of the respondents opposes the application, and a court order is issued against them, then WAPA is requesting they pay the legal costs.
WAPA chairman David Jarvis' covering statement traces the history of the issue and how the VANS sector has become frustrated by the lack of clarity over the issue of building their own infrastructure.
Jarvis cites the ministerial determinations of September 2004, which appeared to have granted VANS the right to self-provide and, because of this, ICASA did draw up draft regulations to allow this.
However, Matsepe-Casaburri seemed to change her mind when she issued a press release on 30 January 2005, stating self-provisioning only related to the cellular network providers and not the VANS.
Absurd?
Matsepe-Casaburri's press release also said: "....it is the intention that VANS operators may obtain facilities from any licensed operator and as specified in the determinations. It is not the government's intention to license every single activity that can be provided by a VANS operator, as this would be an absurd result."
Jarvis says ICASA then asked Matsepe-Casaburri's office to draft the VANS regulations as she intended and these were published in May 2005. However, these regulations are silent as to how VANS may obtain facilities and provide services.
He cites at least two examples of VANS licences issued by ICASA that go further in limiting the right to self-provide.
Jarvis mentions the communications minister's policy directions of September last year. In these, she directed ICASA to ascertain whether some VANS, or none, could qualify for individual ECNS licences, the category that effectively replaces the public switched telephone network category of the old law.
Jarvis says ICASA councillor Marcia Socikwa said at a hearing that it was the authority's view that no VANS should get ECNS licences, but that no written confirmation has been received.
This is despite the fact that all ICASA licence conversion mapping documents show an intention to convert VANS licences to ECNS and ECS licences, he notes.
An ICASA spokesman says the regulator cannot comment, as it has not yet received the court documents.
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