e-rate regulations rewritten (updated)
Update 19 February 2010: ICASA has scheduled hearings in the proposed amendments to the E-rate Regulations for the 4th and 5th of March 2010.
E-Rate Regulations Amendment Hearing Schedule March 2010
Ellipsis has obtained copies of all submissions made in response to the proposed amendment:
CELL C
Governors’ Alliance
INFRACO
ISPA
MTN
MWEB
Neotel
Pretoria High
SABJE
Telkom
TENET
Vodacom
Western Cape Education Department
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Another set of final regulations is up for review – this time it is the turn of the E-Rate Regulations. It is hard to think of a more deserving candidate for a return to the drawing board.
The E-rate is the 50% discount on Internet services to be granted to public schools and public further education and training institutions. Despite being initially raised in 2002 the implementation of the E-rate has been a stellar failure, most notably due to the failure of those drafting the regulations to force Telkom to provide the discount to downstream licensees who in turn are providing Internet services to schools.
Amendment of E-Rate Regulations Dec 2009
Comment is due on 22 January 2010.
The amendment covers the following:
1. The definition of E-rate has been retained: “the discount of no less than 50% applicable to public schools or public further training schools, as well as independent schools or private further education and training institutions, as prescribed, to be entitled to the discount for utilising Internet services provided by a licensee”.
2. They have inserted a definition of “upstream licensee”: “Upstream Licensee” means a licensee who provides ECS or ECNS services to a licensee who in turn provides internet services to public schools or further educations and training colleges or independent schools that qualify for the E-rate discount.
3. They have rewritten the implementation section. The previous section was vague and did not in any way deal with the provision of the upstream 50% discount. Under the amendment the following new provisions are proposed:
a. Upstream licensees must meet requests from other licensee’s to provide an E-rate and give a 50% discount off the “retail rate charged for all electronic communications facilities and/or services provided by a licensee to other licensees and used” for supplying the E-rate to a qualifying institution. The definition of “retail rate” is unchanged from the existing regulations – “the lowest commercial charge levied for a service contemplated in terms of section 73(3) of the Act by a licensee for making available service to public schools or further education and training colleges or independent schools that qualify for the E-rate”.
b. Given the above it is critical to have certainty as to what exactly is included in the E-rate. The Draft Amendment does not provide any definition other than the definition of E-rate as set out in 1. above. As per the definition of “retail rate” set out above, the services to which the E-rate applies are as set out in s73 of the ECA:
i. 73(1) refers to a “minimum discounted rate of 50% off the total charge levied by the licensee providing Internet services to such institutions”
ii. 73(2) refers to the discount being “applicable of the total charge levied by the licensee which includes but is not limited to (a) any connectivity charges for access to the Internet, (b) charges for any equipment used for or in association with connectivity to the Internet, and (c) all calls made to an Internet Service Provider”
iii. 73(3) refers to the situation where a licensee in providing services to qualifying institutions “obtains its electronic communications facilities for the provision of Internet services from a electronic communications network service licensee” and states that such a licensee is entitled to a minimum of 50% off the retail rate charged to it by the electronic communications network service licensee for the facilities in question.
c. In order to get the E-rate from the upstream licensee, the licensee providing services must make an application to the upstream licensee under section 73(3) and must submit a list of schools to which they will be supplying E-rated services. The upstream licensee has 7 days within which to respond to this request. If they refuse the aggrieved licensee should lodge a dispute with “the Authority”.
d. Agreements regarding the E-rate have to take into account the provisions of the End User and Subscriber Service Charter Regulations of 2009 and must contain “the standards acceptable to all parties and that these enable electronic communications networks to be connected” and otherwise comply with “all relevant standards”.
e. There is a prohibition on unfair discrimination in the negotation, conclusion and implementation of an E-rate agreement:
i. A licensee must apply similar terms and conditions, including those relating to charges, in similar circumstances to licensees providing similar services.
ii. A licensee must apply similar terms and conditions, including those relating to charges, in similar circumstances to the schools where the service is rendered.
4. There are 2 clauses regarding time limits for finalising E-rate Agreements which I am not sure make sense when read together:
“3 (4)(d) If there is infrastructure available to provide the service, parties must finalise an E-rate agreement within 30 days from the date of notification by a licensee that it intends to provide Internet services to public schools, public further education and training institutions and declared categories of independent schools or private education and training institutions, unless the parties agree to an extended period which must not be more than sixty (60) days from the date of notification.
(e) If there is infrastructure available to provide the service, parties must finalise an E-rate agreement within thirty (30) days from the date the public schools, public further education and training institutions and declared categories of independent schools or private education and training institutions, request Internet services from an ECS licensee, unless the parties agree to an extended period which must not be more than sixty (60) days from the date of notification.”
5. Any complaint will be dealt with in accordance with the Authority’s prescibed regulations [I am not sure what those might be]. Where a dispute arises between licensees, any of the licensees may refer the dispute to the CCC so as to resolve the dispute and make a binding order.
6. The maximum penalty for non-compliance has been upped from 150k to 500k.
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