The exclusivity period granted to Telkom has caused a legal tangle that has caught up Internet service providers (ISPs), value-added network services (VANS) providers and just about anyone else that transfers data or voice traffic.
It has led to, in the words of South African Telecommunications Regulatory Authority (SATRA) councillor William Currie, "a web of complaints, counter-complaints and court cases".
Telkom, VPN and VANS providers have lodged various complaints about each other with SATRA. At least two court cases are still underway between the various parties, and throughout many of the participants have complained that SATRA has left a regulatory vacuum, making matters more complicated.
In response, SATRA has published two sets of regulations, one specific to VANS and PTNS licence holders and another that will affect all telecommunications providers. The major impact will be that all VANS and PTNS licence holders will have to apply for new licences. And they are not guaranteed to receive them.
The SATRA timeline gives interested parties until 4 May to make representations on the new regulations, after which public hearings will be held in June. VANS and PTNS licensees will have three months to apply for new licences. But at the same time, SATRA means to settle all outstanding Section 53 and Section 100 complaints. Complaints about companies could potentially mean that they will be refused new licences.
According to Currie, breaking the prohibition on carrying voice traffic outside the Telkom network carries various penalties, including fines, cease-and-desist orders and, as a last resort, the revoking of a licence. "A fine will not necessarily preclude the issue of a licence," Currie says. "But it will probably influence SATRA's view of the applicant." He says too many variables come into play to pre-judge the matter, but current licence holders will not necessarily automatically receive new licences.
Although not strictly needed, SATRA also published definitions of VANS and ISPs. "We expect these definitions to be controversial and specifically included them here to see the industry response," Currie says. "The consultation process will serve to test them."
According to the definition list, ISP means "a value-added network service licensee that utilises the Internet Protocol and other related data transmission protocols to provide electronic information services to corporate and residential users by means of leased lines"; lines which can only be leased from Telkom.
A VANS provider is defined as "a usage method that increases the efficiency and effective value of a leased line by allowing customer originated non-voice signals, non-real-time interactive voice signals and non-interactive voice signals incidental to the business of the lessee, to also be transmitted over the leased line, in order to enable the customer to engage in interactive data exchange with the lessee's data bases and processing facilities, during which interaction such data is made available to the customer or processed or manipulated by the lessee on behalf of the customer, resulting in value being created to both the lessee and customer".
These long-winded descriptions means no two-way voice traffic of any kind is allowed. Unless challenged or altered, the regulations will continue to prohibit voice-over-IP services and video conferencing outside a single organisation. SATRA is not necessarily happy with that, but it has no authority over the matter.
"The prohibitions are already in the Act," Currie points out. SATRA can only publish regulations, not alter passed Acts.
SATRA plans to enforce the prohibition of voice traffic outside the Telkom network, although it is not clear if the authority has the technical means to do so. "If we find that there is illegal use we will have to act," Currie notes. Asked how SATRA plans to go about investigating alleged offences, he could only smile ruefully. "We are going to have a go at it and we will let you know," he says.
SATRA hopes the new regulations will help clarify matters and allow conflict to be mediated outside the courts.
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