Telkom, Neotel hearing postponed

The hearing into Neotel's complaint that Telkom is not allowing it access to its network was this afternoon postponed at the Independent Communications Authority of SA (ICASA).

ICASA's Complaints and Compliance Committee (CCC) said the matter was too significant to move ahead without Telkom being represented by senior counsel. Telkom had argued that the issue should be postponed for about a month, because its senior counsel was unavailable as a result of another case running over.

CCC chairman Wandile Tutani said there is “huge interest” in the outcome of the matter, which deals with Neotel's request to have access to certain parts of the local loop.

In October last year, Neotel lodged a complaint with ICASA over Telkom's refusal to lease its last mile to its competitor. Neotel asked ICASA to force Telkom to provide access to the last mile at two locations in Johannesburg's northern suburbs and “any additional locations Neotel may specify from time to time”.

In March, the parties agreed that the issue would be heard today and tomorrow. However, on 12 April, Telkom became aware that its senior counsel would not be available and requested a postponement, which was refused by the CCC.

Attorney Henry Msimang, arguing on behalf of Telkom, explained that the company's senior counsel was suddenly not available. He also told the committee that the junior counsel, who had only been briefed in January, was not a suitable substitute and was fired yesterday, after refusing to argue for a postponement.

Msimang said senior counsel was engaged a year ago and was the only person who was familiar with the case, as he had prepared for the hearing. He said he was not capable of arguing the matter as he had not prepared the papers.

Telkom would have “loved” to proceed with the matter, but was unable to do so through no fault of its own, said Msimang. He denied that the lack of representation was a delaying tactic. “As I am speaking here, chair, I don't have counsel.”

Neotel's junior counsel, advocate Jerome Wilson, opposed the postponement application, arguing that it prejudiced Neotel as it had to pay the cost of legal representation and could not move ahead with the dispute. A postponement would also prejudice the committee, he said.

Wilson argued that Telkom's reasons were not sufficient to justify a postponement. He said the lack of senior counsel was not sufficient reason to push the hearing back. “There is simply no explanation for the circumstances.”

The question of access to Telkom's last mile is important to Neotel and its operations, said Wilson. He said the matter should go ahead as the operator had been trying to gain access to Telkom's network under facilities leasing for almost a year-and-a-half.

The second national operator argued in its complaint, filed after negotiations failed, that Telkom's refusal to give it access breaches the Electronic Communications Act (ECA), because Neotel will have to buy last mile managed solutions from Telkom as an interim measure.

Telkom's responding papers said Neotel's request related to local loop unbundling, which is “currently enjoying the attention of the regulator”. Telkom's letter to Neotel added “the process is still some way from being finalised... In the circumstances, the request from Neotel is somewhat premature.”

ICASA published a position paper on local loop unbundling last November. The first step, trimming the cost of IP Connect by 30%, came into effect this month.

Bitstream, which takes Internet service providers closer to consumers, will come into effect in November.

The parties will reconvene tomorrow to set new dates and Msimang has vowed that the hearing will go ahead after being rescheduled.