Telecoms regulator the Independent Communications Authority of South Africa (ICASA) has come out guns blazing, saying it is ready to face off with MTN in the courts as the fight over the auctioning of spectrum heats up.
The authority this morning issued a statement in response to the move by MTN to approach the courts in a bid to declare the spectrum licensing process unlawful.
ICASA says it received an urgent court application on Wednesday, 27 January 2021, filed by MTN in respect of the invitation to apply (ITA) for the high-demand spectrum or International Mobile Telecommunications (IMT) spectrum licensing process.
In October, ICASA opened the ITA for the licensing of IMT spectrum, also known as high-demand spectrum, and that of the wholesale open access network.
The closing date for IMT applications was 28 December 2020, while that of the WOAN is 30 March 2021.
Operators have been waiting for this spectrum for over a decade in order for them to expand services like 5G, as well as to bring down mobile data prices. The fiscus will also get a boost from the planned auction.
However, the plans for the March auction are facing a threat as mobile operators – Telkom and MTN – have approached the courts to challenge ICASA on the process.
In its court case, MTN is challenging ICASA’s decision to implement an auction structure that creates two categories of mobile operators, namely Tier 1 and Tier 2, and the use of an opt-in auction round in which Tier 1 operators will not be allowed to participate.
Vodacom is the other Tier 1 operator.
MTN argues the categorisation and opt-in structure of the auction have created a very real outcome where MTN would be unable to bid on any of the “anchor band” 3 500MHz, due to the bulk of the spectrum having been taken up by the Tier 2 operators in the initial opt-in round.
The 3 500MHz band will be crucial in the rolling out of 5G mobile services in SA.
Communication breakdown
The authority is currently reviewing the application and has instructed its legal representatives to oppose the application.
The regulator claims it has been in constant communication with MTN on the issues raised in its court application.
On the other hand, MTN also said in its application that it had exhausted all the channels to reach out to ICASA without any breakthrough.
It is unfortunate that MTN has elected to proceed with instituting legal proceedings against the authority under these circumstances, the regulator says.
“This latest litigation attempt is characteristic of either impatience or a subtle desire to channel the authority’s decision-making outlook. We, however, remain steadfast and will defend the process against these challenges,” says ICASA chairperson Dr Keabetswe Modimoeng.
ICASA points out that the licensing of high-demand spectrum is one of the most critical regulatory projects ever undertaken by the authority, backed by policy imperatives and the need to better the lives of all South Africans.
It adds that the licensing process brings with it greater spin-offs for government, business and consumers in the form of faster broadband speed, economic recovery, investment and above all, better quality of service and experience for the South African population.
It is for these considerations that the authority intends to defend this process to the end, it says.
According to Modimoeng, this process has been delayed since 2010. “At this stage, industry players and all stakeholders need to reflect on the extent to which their commercial interests ought to override patriotic considerations. We believe that this licensing process has been balanced, with no room for a winner-takes-all attitude,” states Modimoeng.
“Furthermore, the fact that the respective litigants are uncomfortable for diametrically different reasons is indicative of a delicate balance that the authority has struck in its decisions. The process cannot be tailored for the narrow fulfilment of one or two specific mobile operators,” says Modimoeng.
Forging ahead
ICASA notes the release of the radio frequency spectrum has the potential to make a meaningful contribution to the country’s ailing economy. In particular, it says, the release of spectrum is critical to the country’s multifaceted efforts to not only return our economy to a better credit rating but to forge a new economy in a new global reality.
The authority urged South Africans not to be alarmed by the latest litigation. The process for licensing of high-demand spectrum will continue as planned unless there is a court order issued to delay or halt the process.
“We will go to court and argue our case in defence and furtherance of ICASA’s public interest mandate. We will do so because South Africans deserve to benefit from the imminent release of the radio frequency spectrum through reduced data costs, improved network quality and rural broadband coverage,” says Modimoeng.
The latest court case comes after Telkom in December filed an urgent court application to force ICASA to stop the spectrum licensing process, saying it considers the regulator’s decisions to be irregular and unlawful.
ICASA is also opposing Telkom in that case.
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