The memorandum on the object of the Amendment Bill states that the Bill seeks to amend section 43 and section 44 of the Telecommunications Act No.103 of 1996 by the addition of Section 3A and Section 4A respectively in order to give the powers and assign the duties of a public operator to certain categories of operator for the purposes of guidelines prescribed in terms of section 43(3) and sections 44(5).

Section 43 of the Act addresses Interconnection and Section 44 of the Act addresses facilities leasing.

Telkom’s concerns are as follows:

1. Facilities leasing and Interconnection has historically been dealt with by the regulator. The Act in Section 43 and Section 44 stipulates that the regulator must prescribe guidelines relating to the form and content of interconnection and facilities leasing agreements. In this regard ICASA promulgated Supplementary Interconnection Guidelines as well as Supplementary Facilities Leasing Guidelines in terms of Section 43 and Section 44 of the Telecommunications Act respectively.

This indicates that the regulator had already considered this particular issue through the promulgation of the above regulations. Whilst the Amendment Bill classifies Sentech and does not include Under Serviced Area Serviced Licensees as a Public Operator for purposes of Interconnection and facilities leasing the regulations promulgated by ICASA excludes Sentech and includes the Under Serviced Area Licensees in its categorisation of Public Operator. The Amendment Bill therefore, countermands and nullifies the regulations promulgated by ICASA for reasons that are not apparent.

The matter concerns complex technical and economic issues in a market whose characteristics are rapidly changing. It would therefore be appropriate for this issue to be dealt with by way of regulations rather than by Amendments of the Act which may have to be reviewed continuously.

 

2. Clause 1 and Clause 2 of the Amendment Bill provides that Section 43 and Section 44 of the principal Act is amended by the insertion of the following subparagraph:

For purposes of guidelines prescribed in terms of this subsection (3) and subsection (5) an operator licensed in terms of section 32B, 32C, 36, 37 or 38 has the powers and shall perform the duties of a public operator.

In essence, the Amendment will classify the Second Network Operator, Sentech, Public Switched Telecommunications Service, Mobile Cellular and National Long Distance operators as "Public Operators" for purposes of the guidelines prescribed by ICASA for interconnection and facilities leasing.

The fact that Under Serviced Area Licences are not included from this classification would therefore imply that they would not benefit from being defined as a Public Operator for purposes of Interconnection and Facilities Leasing.

The Amendment Bill stiplulates that an operator licensed in terms of Section 32B, 32C, 36, 37 or 38 shall perform the duties of a public operator. Section 37 of the Act address Mobile Cellular telecommunication services and Section 38 deals with National long distance. Mobile cellular telecommunications service is not an alternative to National Long Distance. The insertion of the word or in- between section 37 and section 38 is therefore inappropriate.

 

3. Section 32C of the Telecommunications Act provides that Sentech shall be granted a licence to provide

• an international gateway service enabling it to provide a carrier of carriers and
• multimedia service.

Section 1 of the Telecommunication’s Act No. 103 of 1996 as amended defines carrier of carriers as follows:

1. originates on the telecommunication system of a public switched telecommunication service licensee or mobile cellular telecommunication service licensee or an under serviced area licensee in the Republic and terminates in a telecommunication system in another country or vice versa; or
2. originates and terminates in a telecommunication system of an operator licensed in another country to provide international services’

But is conveyed via a telecommunication system in the Republic on a wholesale basis, but which specifically excludes the termination of international telecommunication services to end-users directly in the Republic.

Sentech therefore cannot in terms of its "carrrier of carriers" licence provide services to the public.

The Act defines Multimedia as the provision of enhanced data and information services but specifically excludes Sentech from providing telephony services in terms of its multimedia licence.

OFTEL, the UK Telecommunications Regulatory Authority defines Public Operator as "a person to whom a licence has been granted under section 7 of the Telecommunications Act 1984 authorising the running of a public telephone system and the provision of publicly available telephone services."

Sentech therefore cannot be declared a public operator in respect of either of their licences and this was correctly recognised by the regulator after extensive public consultation.

4. The purpose of the Amendment is to create favourable conditions for Sentech to