The under-resourced and often ineffective Independent Communications Authority of South Africa (Icasa) has a reputation for lacking teeth when it comes to enforcing order in the telecommunications sector it regulates. For example, there’s still no clear outcome in the case of the alleged unlawful use by wireless Internet access provider Screamer Telecommunications of state-owned Sentech’s radio frequency spectrum, years after the alarm was first raised. Why not?
This lack of teeth made last week’s raids on six facilities owned by Wireless Business Solutions (WBS), the parent company of broadband operator iBurst, all the more surprising. Icasa, a search-and-seizure warrant in hand, seized communications equipment from WBS, leaving thousands of customers of iBurst and sister company Broadlink without service.
Icasa claims WBS owes it nearly R60m in unpaid spectrum licence fees — a figure the company disputes — and has also accused the operator of using spectrum unlawfully. A series of acrimonious letters between Icasa chairman Stephen Mncube and WBS CEO Thami Mtshali show the regulator is not going to take the matter lying down. But serious questions remain.
Firstly, why did it take Icasa so long to act? Reports about WBS’s alleged noncompliance emerged many years ago. The authority must not allow licensees, whether they’re in the public or private sector, to get away with noncompliance for extended periods. That simply rewards bad behaviour. Any deviation from strict enforcement of the rules will lead to unintended consequences.
Secondly, WBS is not the biggest offender when it comes to unpaid spectrum licence fees. That dubious honour goes to the South African National Defence Force, which at the end of 2012 owed nearly R190m in spectrum fees, Icasa documents claim. Was it easier to pursue WBS than the defence force?
One could certainly imagine the ugly scene if Icasa inspectors, members of the South African Police Service in tow, arrived at defence force facilities and started seizing military communications equipment. Still, Icasa must be careful not to be seen to be targeting one licensee over another. The defence force doesn’t deserve to be treated with kid gloves just because it’s a public sector entity (and has tanks and guns at its disposal).
It’s clear Icasa wants to use the WBS raids as a test case and to send a message to licensees that haven’t settled their dues that it’s now prepared to play hardball. “The authority remains steadfast in its resolve to recover all outstanding radio frequency licence fees from all affected operators,” said spokesman Paseka Maleka. “To this end, it urges all those operators who are in arrears with their radio frequency licence fees to engage with and make payment to the authority as a matter of urgency.”
Unfortunately for Icasa, the high court on Friday night granted WBS an urgent interdict in terms of which it had to return all of the equipment seized during the raids. WBS is now going on the offensive, accusing the regulator of vandalising iBurst equipment and causing it enormous reputational damage through its actions.
Reputational damage through this type of high-profile action is, of course, inevitable. In principle, Icasa is right to pursue those it believes are not complying with the law. Not doing so would mean failing in its most basic duties as a regulator.
At the same time, though, it can’t afford to blunder as it demonstrates an apparent newfound willingness to flex its regulatory muscles. For Icasa’s sake, one hopes that it had all of its ducks in a row before conducting last week’s raids. — (c) 2013 NewsCentral Media
- Duncan McLeod is editor of TechCentral; this column is also published in Financial Mail
