New data rules won't come into force today

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The High Court gives ICASA 10 days to submit answering affidavits to Cell C's court application.
The High Court gives ICASA 10 days to submit answering affidavits to Cell C's court application.

NewIndependent Communications Authority of SA (ICASA) regulations to do with out-of-bundle (OOB) billing and rollover data will not kick in today as planned.

This after Cell C headed to the South Gauteng High Court yesterday, saying the one-month implementation deadline was too short and would be impossible to meet, and that it would need another six months to be able to implement the rules.

An order of court was made yesterday afternoon and ICASA agreed not to take any steps to implement the End-user and Subscriber Service Charter Amendment Regulations (EUSSC) pending the submission of answering affidavits within the next 10 days. Cell C was also given five days to respond once ICASA's affidavit was filed.

"Cell C is relieved by the industry-affecting order of the High Court to suspend the implementation date of the End-User and Subscriber Services Charter Regulations. It was unfortunate that we had to resort to launching the High Court application in order to get a response from ICASA in this matter," the telco said in a statement.

MTN, Vodacom and Telkom had also attempted to get more time to implement the new regulations ahead of the deadline, and yesterday MTN joined Cell C's application as a respondent.

The EUSSC regulations were gazetted on 7 May and were due to come into effect one month later, on 8 June.

The original draft regulations were first published in August 2017 to amend regulations of the same name gazetted in April 2016, with a second draft published in November 2017. A reasons document was then published on 30 April 2018.

The regulations will effectively cancel automatic OOB billing and forces operators to allow users to either opt-in or opt-out of OOB pricing for data. The current common practice is that customers are automatically switched to out-of-bundle pricing once their data or voice bundles have been depleted.

The new regulations also call for specific depletion notifications to be sent when data, voice or SMS bundles reach 50%, 80% and 100% depletion. It also forces operators to provide end-users with an option to roll-over unused data before the expiry date, and the option to transfer data to other end-users on the same network, among other things.

ICASA refuses

Despite the court ruling that the regulations will be temporarily suspended, the ICASA council issued a statement yesterday saying it "refuses to grant requests for extension with regards to the implementation of the recent amendments to the End-User and Subscriber Service Charter Regulations".

ICASA says it is important to note that the EUSSC regulations were necessitated by the general concerns about unfair business rules imposed by licensees in the provision of data services to consumers.

"In particular, the regulations seek to grant consumers relief against expiry of data, bill shock occasioned by lack of transparency on out-of-bundle charges and other rules which are prejudicial to consumers," ICASA says.

"The effect of the extension would be that consumers will continue to be prejudiced by the continued application of the impugned business rules. This would mean consumers will for the foreseeable period of the extension not be able to carry over their unused data and will continue to be charged high out-of-bundle rates without their consent."

The regulator says it is required, in terms of its legislative mandate, to act and regulate in the public interest and it is ICASA's view that granting such an extension would not be in the public interest.

"Hence, the decision to refuse the extension.

"ICASA has decided it will defend the application by Cell C and to this end, has resolved to postpone the effective date until the matter has been heard and pronounced upon by the court. During this intervening period, licensees will not be penalised for non-compliance," the regulator says.

Telcos not ready

All four of SA's major telecoms operators attempted to get more time to implement the new regulations ahead of the deadline, but to no avail.

"MTN had made repeated attempts to seek assistance from ICASA on the issue of the implementation date but had, unfortunately, not received any communication from the regulator," the network told ITWeb.

"It is our intention to maintain compliance, as far as is reasonably possible, and due to the lack of feedback from ICASA, we were left with no option but to pursue relief from the courts. On Thursday, MTN joined Cell C's application as a respondent.

"MTN is working to implement the amendments and does not want to be found non-compliant, so with this as context, we welcome the court's decision and we will continue to pursue the development and implementation of practical and reasonable solutions, while still seeking additional time to make this happen," MTN says.

Telkom also made attempts to get an extension.

"Currently, Telkom is continuing to engage with ICASA on its request for a three-month extension on the implementation of the requirements of the End-User and Subscriber Services Charter Regulations," Telkom told ITWeb.

It says it hopes to have some feedback from ICASA by the close of business today.

"In the event that the feedback is not received, Telkom will set out its version to the court in the application brought by Cell C."

Cell C also says it "is committed to complying with the regulations and will continue with its implementation programme pending the determination of the new deadline". It says that even prior to the publication of the regulations, it advised ICASA that it would be impossible to meet the proposed timeline.

"Despite this, ICASA issued the regulations with the one-month timeframe still included; this while the process leading up to the publication of the regulations took almost 14 months to be concluded."

Cell C said it had on numerous occasions raised this with ICASA and had written to ask for an extension but after getting no response was left with no choice but to turn to the courts to intervene.

Cell C says that to fully implement the necessary changes across its entire product suite, "intensive development and numerous system changes will need to be made, followed by rigorous testing before Cell C can offer this to its customers". Therefore, it and its vendors are technically not able to meet ICASA's deadline.

Vodacom says it also submitted a proposal to ICASA regarding a phased implementation of the regulations "and is awaiting a response on the matter".

"The various elements require a significant amount of development. Our technicians are working hard to get our systems ready."

Vodacom says the deadlines imposed were challenging but "nonetheless, we remain fully committed to implementing the regulations as soon as practicably possible".

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