ICASA shakes up the industry with data expiry and out-of-bundle data rules

The review of the End-User and Subscriber Service Charter Regulations 2016 (EUSSC Regulations) was initiated after consumer groups expressed general concerns regarding data expiry and out-of-bundle data rules.

The amendment process has had a long and contentious history. ICASA first published draft amendments to the EUSSC Regulations for comment on 7 August 2017. This draft imposed new timeframes for the expiry of data bundles, introduced obligations on operators to send usage notifications for data depletion and required that end-users be given the option to choose out-of-bundle pricing.

After extensive comments from industry, ICASA published a second draft during November 2017. This draft sought to give effect to s63 of the Consumer Protection Act, No 68 of 2009 (CPA) by requiring that all prepaid data bundles have a minimum duration of three years and by further including provisions relating to the rollover and transfer of unused post-paid data.

Following further industry submissions, ICASA indicated that it had elected not to pursue a provision which would require prepaid data bundles to have a minimum duration of three years, as the National Consumer Commission, being the custodian of the CPA, should take the necessary steps for parties to comply with s63 of the CPA.

The final EUSSC Amendment Regulations contain four significant changes which relate to usage notifications, the option to rollover data, the option to transfer data and provisions regarding out-of-bundle billing.

The usage notifications require that operators send usage depletion notifications to consumers, in relation to data, voice and SMS services, at depletion levels of 50%, 80% and 100%.

With regard to the rollover of data, operators are required to grant consumers an option to rollover unused data before the date of expiry. Where unused data is rolled over, operators will be required to first apply data usage against the rolled over data, until the data is depleted, and thereafter against any allocated data. The exact practicalities applicable to the implementation of this requirement have not been specified by ICASA.

In addition to the rollover of data, operators are required to grant consumers the option to transfer data to other users on the same network. During the public hearings, concerns were expressed regarding this provision, as technical and integrated functionality would need to be deployed by operators to support this option.

With regards to out-of-bundle billing, operators are no longer allowed to charge consumers out-of-bundle rates for data without the consumer’s prior consent and ICASA has determined that operators’ out-of-bundle data charges can no longer be set as the default position.

In conclusion, the EUSCC Amendment Regulations have fundamentally changed the rules applicable to data expiry and out-of-bundle data.