Operators will have no leeway when it comes to the handset subsidy code of conduct, says the Independent Communications Authority of SA (ICASA).
The regulator quietly published the code of conduct late last year, intended to govern the sale, lease, rental or subsidisation of equipment provided to subscribers by operators. Despite legal opinion to the contrary, ICASA says the operators will be tightly bound to the terms of the code.
The handset subsidy, which essentially drove the mobile market, and was subsequently adopted by all communications operators, has become a consumer nightmare. Many consumers have battled to determine what they still owe operators for equipment, and others continue to pay the fees even once the equipment has been paid off.
The subsidy has also meant that many consumers have been locked into long-term contracts with their service providers.
However, the regulator has been trying to implement a regulation that would govern the subsidy forcing operators to disclose the amount still owed on a phone or modem clearly on every bill.
ICASA published a regulation in June last year, which would have forced operator disclosure and allowed customers to select the length of their contract, from between six months to two years.
However, the regulations - first published almost two years ago - were heavily contested by the operators, and Vodacom went as far as to threaten the regulator with legal action. ICASA bowed to the pressure and pulled the regulations.
However, ICASA has re-released these regulations, now in the form of a code of conduct. The new code still includes these stipulations, saying that operators must clearly state how much of the phone or other device is subsidised and how much still needs to be paid.
While there is still a period of public comment, which could change the actual content of the code, if ICASA takes a firm stance with the operators, the code could put the power of contract subscriptions back into the hands of the consumer.
Soft stance
However, some legal experts say a code of conduct is a softer stance on the matter and operators will have an easier time contesting the code than they would fighting something prescribed by regulation.
ICASA did not explain why it decided to implement a code of conduct rather than publish the code as a set of regulations. It says only that “the process for prescribing the regulations commenced when the Telecommunications Act era and then the ECA [Electronic Communications Act] was enacted, which requires the authority to prescribe a code of conduct”.
It appears that ICASA chose to make it a code rather than a regulation, simply because the ECA needs ICASA to have at least one code of conduct to which to bind the operators. “In terms of section 69 of the ECA, the authority must prescribe the regulations setting out a code of conduct for licensees,” explains ICASA.
Operators will likely have submitted their written submissions to the regulator; however, it remains to be seen if the regulator will follow through with the code's implementation.
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