South Africa - essential facilities

Telkom attacks ICASA's essential facilities
see also Regulations Prescribing a List of Essential Facilities and Matter Related Thereto Pursuant of the Electronic Communications Act

Telkom is challenging moves by the Independent Communications Authority of SA (ICASA) to prescribe essential facilities, arguing that SAT 3 and its landing station should not be included on this list.

This argument was presented to ICASA during the public hearings held by the regulator on the establishment of essential facilities.

ICASA published a draft list of essential facilities in December following an instruction by Communications Minister Ivy Matsepe-Casaburri to do so. The regulator also invited written submissions, and received input from 17 ICT stakeholders.

In its oral submission yesterday, Telkom questioned the inclusion of submarine cables as essential facilities, considering that undersea cable projects such as Seacom, Eassy and Uhurunet are already underway.

“A shorter timeframe would indicate that [SAT 3 and the landing station] are [essential facilities]. However with a 36 month forward looking timeframe, sub-marine cables should not be regarded as essential facilities.”

The fixed line operator also argued that fibre optic cables, backhaul circuit, international gateway, earth station and land based fibre optic cables are not essential facilities.

Telkom contended that the conditions of access to essential facilities, as well as dispute resolution mechanisms, should not be included in the essential facilities list.

No legal basis

The Internet Service Providers Association of SA (ISPA) says Telkom's arguments look like a delaying tactic.

“I don't believe there is a legal basis for the position they are adopting and it may be a way to gain more time to maintain the monopoly of some infrastructure that is being included in the essential facilities list,” says legal counsel Dominic Cull.

He adds he finds it “mind-boggling” that Telkom would argue that undersea cables and cable landing stations should not be declared essential facilities.

“It's self-evident the infrastructure is under the control of a single entity and cannot be duplicated,” he says.

Short-term solutions

ISPA members want to get access to essential facilities as soon as possible, and have urged the regulator not to yield to delaying tactics.

The provision that ICASA review the status of undersea cables as essential facilities in 36 months should not deter it from declaring them as such for now, says Cull.

He also noted that ISPs don't want to wait for wholesale price regulation before ICASA drafts the list of essential facilities.

“We just want the access portion now. And if it's going to be on a basis where price is not regulated, our members still want it. It will be fantastic when it is regulated, but we don't want the process to be delayed for up to12 months or longer while the authority fights it out with Telkom over price regulation.”