The Independent Communications Authority of SA (ICASA) may be in for a fresh bout of battle following an amendment to its 2012 General Licence Fees Regulations, which licensees argue will result in them having to fork out more in licence fees to the regulator.
While the ICASA General Licence Fee Amendment Regulations 2014 came into effect in April, the authority only last week published a reasons document, following industry discontent and a formal request for this, under the Promotion of Administrative Justice Act, from the Internet Service Providers' Association (ISPA).
The main amendment effected by ICASA's updated regulations pertains to the definition of "licensed service" amendment - a move the authority says was taken to clarify licensees' confusion and in the interest of the public, but one many licensees argue only exacerbates confusion and ultimately amounts to more cash in ICASA's pocket.
Under the 2012 regulations, the licensed service was defined as: "Licensed Service as defined in the Electronic Communications Act under broadcasting service, electronic communications service and electronic communications network service; and as contained in the relevant licence and does not include the resale of electronic communications services, service provider discounts, agency fees, interconnection and facilities leasing charges, and government grants and subsidies."
The latest regulations now define this as: "Licensed Service as defined in the Electronic Communications Act under broadcasting service, electronic communications service and electronic communications network service, and as contained in the relevant licence." Consequently, ICASA has now cut some services out of the definition, which means some deductions can no longer be claimed, licensees argue.
Industry opposition
A number of licensees raised concern around the move, including ISPA, M-Net, Telkom, Vodacom and MTN, as well as the Wireless Access Providers' Association and the National Association of Broadcasters.
Dominic Cull, owner of Ellipsis Regulatory Solutions, says what should be a relatively straightforward exercise "remains a mess". He says the latest amendment has exacerbated this and made ICASA's position - essentially an increase in licence fees to take into account its inability to regulate licence fees - all the more indefensible.
"We do not believe that this is in any way helpful. At best it is a half-fix of only one of a multitude of problems with the General Licence Fee Regulations."
He says ICASA is under pressure from the auditor general, who is trying to get the entity to predict what licence fees it should be getting in. "But instead of simplifying the issue for industry, ICASA is causing industry to pay more - which means consumers, in turn, pay more.
"[The latest amendment] clarifies nothing for licensees and will not make ICASA's calculation and collection of annual licence fees any easier. This is purely for [ICASA's] benefit, because it is under-resourced."
Cull says, now that ICASA's reasons have been laid bare in a document, industry players will study it and a decision will in due course be made as to whether they seek to have the document overturned or reviewed. Should negotiations with the regulator fail, he says, the next step would be high court action.
ICASA says, through its amended regulations, which trimmed the definition, it "wished to resolve the confusion and make it clear that no deductions or exclusions are permissible from revenues generated from licensed services on which licence fees are levied".
However, says the authority, it accepts there is an obvious need for further clarity, and there is no consensus between licensees in this regard. "As such, the authority intends to institute a further public consultation process aimed at drafting further amendment regulations."