The ruling in favour of Telkom has come after…

‘ICASA’s Complaints and Compliance Committee (CCC) recently held hearings into Telkom’s alleged non-compliance with the ADSL Regulations. The hearings focused heavily on the issue of local capping. The ICASA Regulation 3.4 states that “local bandwidth usage shall not be subject to a cap”, something which the complainant, Mr TG Cleghorn, felt Telkom is not in compliance with’ (ICASA rules in Telkom’s favour, MyBroadband, 11 December 2007).

In other words, a certain Mr TG Cleghorn lodged a complaint at ICASA that Telkom is in breach of the ADSL Regulations regarding the provisioning of uncapped local bandwidth.

‘At the CCC hearings Telkom initially attacked the ICASA CCC’s authority and jurisdiction to hear the matter and later argued that Telkom is in full compliance with the ADSL regulations. Telkom submitted that the correct interpretation of regulation 3.4 is that a subscriber's local bandwidth usage may never be capped, i.e. cut off or restricted, but that both local and international bandwidth may be counted and may accumulate for the purpose of calculating the total bandwidth usage and thus determining when the cap (which is to be imposed only in respect of international bandwidth usage) is reached. Mr Cleghorn agreed with Mr Maritz's interpretation of regulation 3.4, but submitted that Telkom's actions were not in accordance therewith. He asked the Committee for leave to call witnesses to testify that Telkom has indeed capped local bandwidth usage in the sense of cutting off or restricting access thereto. However, the Committee refused to allow Mr Cleghorn to do so since it was never part of his complaint that Telkom had capped users, and Telkom was not afforded a reasonable opportunity to respond to such an allegation’ (ICASA rules in Telkom’s favour, MyBroadband, 11 December 2007).

In other words, while Cleghorn agreed with Maritz’s interpretation of regulation 3.4 he felt that Telkom was in breach of the relevant regulation. He requested time to call witnesses to testify that Telkom has capped local bandwidth usage but the Committee refused his request.

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