Telecommunications group Telkom has welcomed the Gauteng High Court’s decision to halt the Independent Communication Authority of South Africa’s (Icasa’s) planned spectrum auction process pending a review.
Telkom said the decision affirmed its view that there are concerns around the lawfulness of the process.
“Telkom welcomes the judgement of the Gauteng High Court’s to interdict the spectrum licensing process. While we wait for the court to hear the review, we implore Icasa to engage and explore a path to license spectrum lawfully, rationally and expeditiously,” said Telkom Group regulatory affairs executive Dr Siyabonga Mahlangu.
Icasa was due to start the spectrum auctioning phase, which included the bidder seminar, the mock auction and the actual auction, at the end of March, after issuing the invitations to apply (ITAs) for the International Mobile Telecommunications (IMT) spectrum and the Wireless Open Access Network (Woan) on October 2.
“The High Court has issued an order, without reasons, interdicting and restraining Icasa from proceeding with the auction process pending the final determination of Telkom’s application to review Icasa’s decision to publish the two ITAs. The effect of this order is that Icasa cannot at this stage proceed with the auction process and the timetable for that process will have to be revised,” said Icasa chairperson Dr Keabetswe Modimoeng in response to the interdict.
In December, Telkom took to the courts to have Icasa’s spectrum licensing process suspended on the basis that the respective ITAs were fundamentally flawed by including the 700 MHz and 800 MHz frequency bands, which are not available for use and are not likely to be available for use for a long period after the auction, besides other reasons.
“Telkom is an obvious contender for portions of the frequencies in the 700 MHz and 800 MHz bands. Access to these bands of spectrum would enable Telkom to meaningfully compete in the market for the provision of mobile communication services, and especially in the mobile data services market,” Mahlangu said at the time.
This was followed by an urgent application by MTN in January to review Icasa’s auction process, particularly the decision to classify MTN and Vodacom as Tier 1 and Telkom, Cell C and others in Tier 2, which would exclude the bigger Tier 2 rivals from an opt-in auction round for the 3.5GHz radio frequency spectrum band and provide smaller operators, which already have spectrum in that band, first option to purchase more capacity.
“We have never been so close to licensing high demand spectrum. We were literally three weeks away from auctioning this much-needed resource that would have seen South Africans benefit through this process in terms of reduced data costs and improvement in quality of service and experience,” said Modimoeng.
Icasa plans to exhaust all legal avenues in respect of this process, including appeals, to ensure the process is in the best interests of industry players and the public.
“We were here in 2016 when an interdict on a similar matter was issued, and that led the authority to enter into an out-of-court settlement, withdrawal of the ITA and other forms of mediation. Such interventions took us nowhere. We are not going back there.”
“We, however, await the reasons for the judgement,” Modimoeng continued, remaining resolute that the licensing process will be finalised in due course.
The Department of Communications and Digital Technologies said it remains open to mediation for the parties involved to find a common solution through alternative dispute resolution outside of the court process.
“Like all parties involved, the government would like to see the auctioning of the spectrum taking place without delay. We are calling on all parties and the sector to work together in the spirit of give and take and avert further delays on auctioning of spectrum,” said Communications and Digital Technologies Minister Stella Ndabeni-Abrahams.