Telecoms regulator the Independent Communications Authority of SA (ICASA) remains resolute and will defend the high-demand spectrum licensing process every step of the way, says chairperson Dr Keabetswe Modimoeng.
Modimoeng was addressing the litigation challenges ICASA currently faces, noting he cannot give too much detail on the various litigation positions, as this is still before the courts.
ICASA’s chairperson told Parliament’s Portfolio Committee on Communications that it is in the public interest that spectrum is released.
“We have opened doors through various consultative processes, leading to the publication of the ITAs [invitations to apply],” he noted. “At this point, we cannot negotiate spectrum licensing, but we just have to make sure that we license spectrum in the public interest.”
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.
After much delay, ICASA finally embarked on a process to license high-demand spectrum; however, the interdict lodged by Telkom in December threatens to derail this process.
Broadcaster Etv also joined Telkom in its legal bid, with the telecoms regulator receiving papers in this regard on 12 January, according to Modimoeng, adding that Etv’s argument is centred on ICASA’s plan to auction spectrum in the 700MHz and 800MHz frequency bands, where spectrum in these bands is still being used by TV broadcasters.
MTN also filed an application in the Gauteng High Court against the regulator in regards to the tiering and the opt-in and -out scheme as articulated in the ITAs.
On 23 February, Vodacom launched a counter-application in relation to the one launched by MTN, revealed Modimoeng.
He said Vodacom, among others, holds the view that the opt-in scheme is reasonably capable of interpretation that does not lead to the irrational outcome contemplated by MTN. “This means Vodacom’s arguments would then have to be considered as we handle the MTN litigation.”
Detailing subsequent events, the ICASA chairperson told the committee that on 25 February, the authority received correspondence from communications minister Stella Ndabeni-Abrahams requesting or checking if it would be amenable to participate in a mediation process.
He notes ICASA considered the request and a response was sent to the minister the next day, saying: “Having considered the evolution of the matter, having considered the delays encountered in the licensing of spectrum in the Republic, the authority will not be participating in any mediation and we are of the view to let the courts decide.
“Let the various courts at various levels apply themselves on this matter because we believe that agreeing to enter into a mediation of sort would, one way or the other, translate in interdicting ourselves and not licensing this much-needed spectrum.
“On the day of court, the authority notes that a legal representative of the minister informed the court that the minister will abide by the outcome of the court in the matter of Telkom and Etv versus the authority.
“We await judgement in this regard. In the intervening period, because there is no interdict in place, we are still working tirelessly around the clock to ensure spectrum is released.”
He added: “Until spectrum is released in this country, we will battle to effectively deal with the issue of data costs, voice costs; overall known as the cost to communicate. We will battle to effectively and meaningfully regulate the quality of service – dropped calls that are often experienced by the public.
“COVID has taught us that we need more spectrum for e-learning, e-health and working virtually.”
Modimoeng reiterated that the regulator is still working towards the spectrum auction.
In terms of the applicants, the ICASA chairperson revealed the regulator received six applications for participation in the upcoming auction, which include Telkom.
“We still aim to conduct an auction by no later than 31 March 2021,” he indicated. “The commencement thereof will be in the form of bid seminar and a mock auction.
“The other part is the wholesale open access network; the closing date for the applications is 30 March 2021. We are still proceeding.”
Portfolio committee chairperson Boyce Maneli concluded that they look forward to the spectrum auction matters getting resolved. “It is in the interest of the country that we move forward on this matter. It’s been on the table for years now – it’s time to deliver on it.”