ICASA admits to being weak

The Independent Communications Authority of SA (ICASA) wants some parts of the Consumer Protection Act (CPA) to fall under its jurisdiction, but admits it is already operationally and financially constrained.

ICASA has long been accused of being a toothless regulator and not fulfilling its mandate, a situation it blamed on a lack of funding. Now, it wants to add to its burden by having some provisions of the CPA fall under its jurisdiction, instead of under the National Consumer Commission (NCC).

However, the authority will face the tricky task of making sure it gives consumers the same level of protection they would have under the new consumer legislation. It will also have to strengthen its ability to act as a consumer forum.

ICASA is holding public consultation sessions to work out which parts of the CPA should fall under its mandate, instead of being dealt with by the newly-created NCC.

The NCC was created in terms of the CPA and is tasked to deal with consumer complaints against companies and other entities across the entire economy. ICASA says there are overlaps between its mandate and the NCC's job.

Because of the duplications, consumers can forum-shop between ICASA and the NCC. The overlaps could also lead to a case of “double jeopardy” if a company is fined by both bodies.

Councillor Fungai Sibanda says the body can apply for some aspects of the Act to be exempted and fall under its control instead of the NCC's jurisdiction. There are several areas where the CPA overlaps with ICASA's mandate: quality of service, contract terms and conditions, prepaid vouchers and handset subsidies.

ICASA wants to have jurisdiction over quality of service and have prepaid SIM cards exempted from the CPA. Sibanda says if the CPA applies to prepaid SIM cards, they would only expire after three years, which could see operators running out of cellphone numbers.

In terms of contract terms and conditions, ICASA is happy to leave most of the issues up to the NCC, barring charging and billing, as the body regulates price. ICASA will also leave the issue of handset subsidies up to the NCC.

However, in terms of the CPA, ICASA will have to offer the same, if not better, protection to consumers, and the authority already has a reputation for not fulfilling its mandate.

Yesterday, the body admitted to being “weak” and that it is battling to fulfil its mandate to make sure operators deliver good quality service, a key area ICASA wants to keep hold over, arguing that the NCC doesn't have the expertise.

Chairman Stephen Mncube admitted: “We are aware that we are weak.” ICASA must be a strong body, because the industry is fluid, he noted, and the authority wants to “move from weak to strong”. However, to do this, ICASA will need more money, commented Mncube.

The authority has already complained it doesn't have enough funds to fulfil its current mandate. Councillor Fungai Sibanda says, for ICASA to be effective, it needs to be properly funded. “We've been singing this song forever.”

CEO Themba Dlamini previously said ICASA has a shortfall in its budget of about 36%, an announcement that irked analysts, who argued it doesn't use its current resources efficiently enough.

Communications minister Roy Padayachie told ITWeb this week that the department is “very” committed to supporting ICASA and strengthening its ability to fulfil its mandate.

Sibanda says ensuring quality of service is tied to the question of capacity and resources. ICASA has a three-pronged approach to ensure telcos deliver good quality service, he explains.

Among these are the bi-annual reports licensees must provide detailing the number of dropped calls and other network issues in terms of ICASA's service charter, Sibanda notes. The End-User and Subscriber Service Charter was launched in the middle of 2009 and tasks operators with ensuring service availability is at 95% or above, or face fines.

However, despite ICASA's promise two years ago - reiterated yesterday by Sibanda - that statistics from the reports would be made publicly available, consumers still have no way of checking the integrity of the information.

Sibanda concedes that levels of compliance with its rules are an issue. He says, however, that the number of complaints ICASA deals with will drop because some of those issues will be dealt with by the NCC.

ICASA's engineering and technical department battles to make sure operators are complying with minimum standards, because it needs “modern” equipment to do the tests effectively, which “is a weakness,” Sibanda adds.

The third prong is a consumer division, which conducts a perception audit among subscribers once a year, says Sibanda. However, Mncube says the body “hardly even has a call centre where complaints can come in”.

Sibanda says, despite these limitations, any body that aims to ensure cellular companies are providing a minimum quality of service will have to have the necessary expertise, and equipment.

As ICASA already regulates this issue, Sibanda argues it has the required technical knowledge. “I'm not sure anyone is better equipped and trained in telecoms issues than the regulator.”

Sibanda says there may be a need to amend some of ICASA's regulations so that the authority is in tune with the CPA. He says the consultative process that the authority has embarked on will shed light on whether this is necessary.

ICASA may also apply for conditional exemption from trade and industry minister Rob Davies to give it the time it needs to bring its legislative framework in line with the CPA if there are any “loopholes” or “shortcomings”, says Sibanda.

However, it's too early to say whether this process will be required, adds Sibanda.