Articles

Opinion on the legality of self-provision by VANS licensees

Posted 13 February 2005

prepared 13 February 2005

Please note that this is an opinion piece published for the purposes of generating discussion. We do not advise that, under any circumstances, you rely on the analysis below as a justification for the taking of any decision relating to the legality of a particular telecommunications service. You would be better advised to seek legal opinion specific to your business.

Timeline of events

On 2 September 2004 the Minister of Communications announced, by way of a Ministerial Determinations, that the following liberalisation initiatives relevant to VANS would be effective as from 1 February 2005:

• In terms of section 40(3) of the Act, 1 February 2005 shall be the date from when VANS may carry voice using any protocol.
• In terms of section 40(2) of the Act, 1 February 2005 shall be the date from when Value Added Network Services may be provided by telecommunication facilities other than those provided by Telkom and the SNO or any of them.
• In terms of section 40(4) of the Act, 1 February 2005 shall be the date from when a person who provides VANS shall be entitled to cede or assign the right to use, or sublet or part with control or otherwise dispose of the telecommunications facilities used for the provision of value added network service.

As required under the Telecommunications Act these policy determinations were duly published in Government Gazette, 26763, Notice 1924 of 2004.

The gazetting of the Determinations was followed by a public consultation process, including a two-day colloquium on the 20^th and 21^st October 2004 and the receipt of a large number of written submissions, initiated and guided by ICASA with a view towards reaching a firm understanding of the meaning and extent of the Determination. At the conclusion of this consultative process ICASA released, on 22 November 2004, a further document entitled "ICASA's Interpretation of the Ministerial Determinations for the Telecommunications Legislation".

This document stated, in respect of VANS self-provision, that:

"VANS may self-provide facilities from 1 February 2005. Self-provision contemplates the procurement of telecommunication facilities by a VANS licensee from any telecommunication facility supplier and to use them under and in accordance with its licence to provide telecommunication services."

[author's emphasis]

Having set out its understanding of the issue pursuant to public participation, ICASA proceeded to pursue finalisation of the new regulatory framework for VANS license-holders, with an initial focus on the amended terms and conditions which would be applicable to such licenses subsequent to 1 February 2005.

It is interesting to note that the initial set of terms and conditions proposed by ICASA contained the following in connection with the issue of self-provision:

"