Draft mobile regulations “too mobile-centric”

March 8th, 2018, Published in Articles: EngineerIT

ICASA Councillor Botlenyana Mokhele.

Several respondents at the hearing on the Draft End-User and Subscriber Service Charter told told the Independent Communications Authority of South Africa (Icasa) that its draft regulations are too mobile-centric and do not cater for companies that provide mobile internet services. The hearings were held on 1 and 2 March 2018 to discuss the draft regulations published in the Government Gazette no 41263 of 17 November 2017. The revised draft regulations propose to amend the End-user and Subscriber Service Charter Regulations 2016 which were published in Government Gazette No 39898 of 1 April 2016,

In her introduction, Councillor Botlenyana Mokhele, who chaired the hearing, said that whilst Icasa acknowledges the concern with regards to the perceived high cost of data and the high out-of-bundle (OOB) rates, it is important to note that these particular hearings on the amendment of the End-User and Subscriber Service Charter Regulations of 2016 and the associated regulatory process do not seek to directly or indirectly regulate the price of data services. #DataMustFall was not on the table.

The hearing addressed: the new timeframes for the expiry of data bundles; requirement for licensees to send usage notification for data depletion to the end-user; and for end-users to be able to opt-out or opt-in to OOB pricing on data, voice and SMSs.

The Wireless Access Providers’ Association (WAPA) opined that the Authority continues to conflate the different markets in which electronic communications services (ECS) and electronic communications network services (ECNS) licensees operate, which results in one-size-fits-all regulations that, in this case, only apply to the mobile operators and do not factor in the other types of services offered by the licensees.

WAPA believes this can result in regulations that are either not applicable to the majority of the licensees, or with which they cannot practically comply. WAPA has raised this before, notably in December 2015 and in February 2016 in its responses during the drafting process leading up to the current regulations. The association’s members have also raised this directly with the Authority in the course of their compliance reporting. WAPA urged the Authority to consider the different markets when finalising the regulations.

In their presentation, the Internet Service Providers Association (ISPA) concurred with WAPA when they stated that “the Authority continues to focus on mobile licensees in drafting the regulations, and continues to ignore the reality that the majority of licensees do not fit into the same category”. Similar sentiments were echoed by Liquid Telecom and other operators.

Draft regulations ultra vires

The Free Market Foundation submitted that the draft amendments should propose a new regulation that would oblige licensees to provide prepaid data bundles with a minimum expiry period of three years. But the Act envisages that a service charter should address customer-service matters only; the proposed regulation goes beyond that and is hence ultra vires (beyond one’s legal power or authority). The same applies to the proposed regulation to compel licensees to give a post-paid user an option to roll over to his next billing period any data unused from his monthly data allocation, or to transfer data from his monthly allocation to other end-users. The 2016 Service Charter Regulations themselves are ultra vires, because they prescribe compulsory obligations for licensees, rather than minimum standards for the service charters that licensees develop.

In their written submission, Vodacom posited that the powers of the Authority to prescribe regulations and set out a code of conduct in terms of section 69 of the Electronic Communications Act do not extend to the regulation of the products and services (and indirectly, the prices for such products or services) that may be offered by licensees. The proposed amendments go far beyond setting “minimum standards” and also extend beyond the stated objectives of the regulations. Such an intervention is legally competent only after a market review undertaken in terms of Chapter 10 of the ECA.

Another point discussed was the conflict between two Acts. Can the Consumer Protection Act prescribe to regulations devised in term of the ECA? Surely not! This argument is around the regulation that data must expire only after three years.

Vodacom, Telkom and several other companies disagreed with Icasa’s proposal to increase the minimum validity period of prepaid data bundles to three years. There are technical implications to consider. Extending the data expiry periods to three years prescriptively will disrupt the current configuration in the network. Telkom warned that the subsequent need for additional network resources would result in an increase in costs.

There was much discussion about the high OOB rates. Operators generally agreed that over time they will phase them out and offer one rate, as it was when the mobile service started out many years ago.

Icasa will have to go back to the drawing board and consider the various objections and proposals and come up with regulations that fit all sectors of the market. And for their part, the operators need to pay more attention to customer education.

Icasa intends to publish the final regulations by end of April 2018.

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