Get ready for telecoms turf war

The Independent Communications Authority of SA (ICASA) has woken up to the fact that its mandate overlaps with the new Consumer Protection Act (CPA), and wants the telecoms industry to remain under its jurisdiction.

However, if the regulator succeeds in retaining its grip, consumers will again be left at the mercy of a body that does not have a successful regulatory record, nor a history of effectively policing the telecoms industry.

The CPA came into effect at the beginning of the month, creating a National Consumer Commission (NCC) that is mandated to investigate consumer complaints across all of SA's industry sectors. However, it overlaps with the regulator's jurisdiction, creating confusion as to which body has the final say.

ICASA wants to sort this out, and is in talks with the NCC and the Department of Trade and Industry to clear up overlaps in jurisdiction. The regulator is determining whether it should apply for all, or parts, of the telecoms industry to be exempt from the Act, and is set to sign a memorandum of understanding with the NCC to clarify which body does what.

Meanwhile, consumers can shop between the two bodies to have complaints favourably resolved. However, this means companies in the sector are caught in a jurisdiction quagmire as they have to comply with both bodies, while still grappling with how to implement the CPA.

ICASA is evaluating the Electronic Communications Act and its regulations to determine whether it is necessary to apply for the industry to be exempt from the CPA. The authority will also engage with the sector and consumers to ascertain whether it is necessary to apply for exemption, says a statement.

Spokesman Paseka Maleka explains there are potential overlaps between the two bodies' functions. He says ICASA is in discussions with the NCC to get to a memorandum of understanding that will see complaints referred to ICASA. “It's going to be complicated if two bodies are doing the same thing.”

Currently, complaints can be directed to either entity, which could result in complainants being referred to and fro between the authorities, says Maleka. “At the end of the day, complaints will not be addressed. There needs to be clarity.”

Maleka explains that ICASA has only just realised the need to resolve the jurisdiction issue because of the number of complaints that have been sent to the NCC. “The question of jurisdiction comes in.”

The bodies are only beginning to iron out the overlap. Maleka says consultation still needs to take place and, if possible, ICASA will apply for the industry to be exempted from the CPA, and placed firmly under its control.

Kathleen Rice, director at law firm Cliffe Dekker Hofmeyr, says there is a considerable degree of overlap between ICASA and the NCC.

Rice says consumers are better protected by the CPA, because it has “a lot more teeth” than ICASA's regulations. She says, currently, the NCC has primary jurisdiction over consumer complaints, and has the authority to liaise with other regulatory bodies when dealing with complaints.

Consumers are currently in a good position, because they can forum-shop to get the best possible outcome to a complaint, says Rice. However, this leaves telcos in a complicated position, because they can be dragged off to both bodies when consumers complain, and could end up with conflicting decisions.

Rice explains ICASA wants jurisdiction over the sector, because it feels it has the necessary expertise. However, it would be better news for consumers if ICASA didn't have jurisdiction over the sector, says Rice.

Dominic Cull, owner of Ellipsis Regulatory Solutions, says ICASA's record of protecting consumers suggests it is an ineffectual regulator, without any real teeth.

ICASA is mandated to deal with consumer issues, so it has the legislative basis on which to do so, says Cull. “Experience indicates, however, that they do not have the capacity to do so and it is doubtful whether they are a suitable body to discharge this function.”

Cull's view is that the regulator should deal with consumer protection issues broadly through its regulation-making process, but should not deal with individual complaints unless, perhaps, these involve a breach of a licensee's licence terms and conditions.

ICASA should also play an advisory role in assisting the NCC with consumer complaints relating to the provision of licensed services, says Cull. “From a consumer perspective it is at least preferable to have an option other than ICASA.”

However, Cull adds it is encouraging that ICASA has recognised the need to engage with the NCC. “Hopefully the net result will be far more effective protection of consumers of electronic communications.”

Cull hopes the bodies can complement each other “so that some of the less salubrious conduct in the industry can be dealt with”. However, the exact outcome of the jurisdictional debate will only be determined when an exemption is granted, he adds.

Steven Ambrose, MD of WWW Strategy, says SA is running into a situation where there are many well-meaning, but poorly thought-out, pieces of legislation. “Everybody is playing in everybody else's sandpit.”

ICASA wants its turf back, says Ambrose, and consumers are caught in the middle of two overlapping pieces of legislation. Neither of the bodies has a clear mandate, says Ambrose.

He notes that the legislative overlap clouds the issue and the consumer will be left in the dark while the authorities sort out what is happening. This, he says, will have “unintended consequences”.

ICASA should not be dealing with consumer complaints; it should be regulating the sector, notes Ambrose. He says the lack of a consumer protection body before the CPA came into effect meant ICASA had to deal with these issues, but now it has “become a legislative mismatch”.