Just days after saying it would hold off on publishing draft regulations on unbundling Telkom’s local loop, so as to give new communications minister Yunus Carrim a chance to review them, the Independent Communications Authority of South Africa (Icasa) has staged an about-turn and decided to publish them now.
Icasa spokesman Paseka Maleka says Carrim has been informed of the authority’s decision to publish the draft regulations on local-loop unbundling (LLU) this week instead of waiting for the minister and the department of communications to review them.
There is no legal requirement for the minister to review regulations — draft or otherwise — before they are published in the Government Gazette.
The regulations, which deal with how Telkom should be required to open its copper network into homes and businesses to rival operators and Internet service providers, are expected to be published on Icasa’s website by Thursday, if not earlier.
Icasa is legally bound to craft the regulations following an instruction from its complaints and compliance committee, which recently found in favour of Neotel, which wants access to Telkom’s telephone exchanges under existing facilities-leasing regulations.
Last week, Icasa said it was holding off on publishing the regulations because Carrim could have “another view” on them and it didn’t want to have to withdraw or review the regulations later if he did.
It’s not immediately clear why Icasa’s council has changed its mind. The decision to publish the draft regulations followed a meeting of the authority’s council on Wednesday.
Telecommunications lawyer Kathleen Rice, who is director of the technology, media and telecoms practice at Cliffe Dekker Hofmeyr, told TechCentral last week that Icasa does not need approval from the minister or the department of communications and is only required to “consider” existing government policy in crafting regulations.
“Policy has been pretty consistent in recent years that Icasa must unbundle the local loop,” she said.
Rice said that in terms of the Electronic Communications Act, Icasa must inform the minister of its intentions and the subject matter of proposed regulations not less than 30 days before their publication. However, it has no obligations beyond that. “The minister should have no say in regulations at all.”
The latest developments come after warnings that government could be trying to stall LLU. The department of communications is pushing for Icasa to first conduct a regulatory impact assessment, or RIA, before pressing ahead with unbundling.
The purpose of the RIA would be to gauge the likely effect LLU would have on the South African telecoms sector. But doing so could delay the process, possibly by years.
A senior Icasa insider, speaking on condition of anonymity, told TechCentral this week that LLU is “not optional” and that the RIA is just meant to stall the inevitable. “These are delaying tactics. Everyone is telling us we have to do a RIA, but that’s just so we can postpone the entire thing,” the source said.
Icasa spokesman Paseka Maleka said on Monday that the authority doesn’t think a RIA was necessary. Under the Electronic Communications Act, LLU is “not optional”, while a RIA is not a requirement. He said Icasa’s view that a RIA was not necessary was “articulated to the department of communications”.
“It is not only due to lack of budget that Icasa is not doing a RIA, but because we are guided by the act,” Maleka said. — (c) 2013 NewsCentral Media
