A shopper walks past a Telkom shop at a mall in Johannesburg. REUTERS/Siphiwe Sibeko
South Africa’s telecoms regulator has vowed “to exhaust all possible legal avenues” after being dealt a blow in court this week, when an order halted the impending auction of high-demand spectrum.
The regulator’s stance is at odds with that of the communications ministry.
Independent Communications Authority of South Africa (Icasa) chairperson Keabetswe Modimoeng has expressed dismay at the order delivered by the high court this week, but reiterated his confidence in the judiciary.
Part of the “dismay” stemmed from the fact that the order interdicting and restraining Icasa from proceeding with a scheduled auction later in March, was awarded “without reasons”.
History repeats itself
The latest twist in this long-running saga marked a repeat of history because this week’s order went in favour of e.tv and Telkom. In 2016, Telkom approached the courts to challenge Icasa on an impending radio frequency spectrum auction.
Communications and digital technologies minister Stella Ndabeni-Abrahams has called on “all parties and the sector to work together in the spirit of give and take, and avert further delays on auctioning spectrum.”
Ndabeni-Abrahams has indicated she is in favour of a mediated resolution, but Icasa has rebuffed this and pointed to a similar, bitter experience with Telkom in 2016.
Amicable possibilities?
Boyce Maneli, the chairperson of parliament’s portfolio committee on communications, which exercises oversight on Icasa and the department, hopes for an amicable outcome.
In addition to the e.tv and Telkom matter, MTN has instituted court proceedings and wants a review of the tiered approached adopted in the now-thwarted spectrum auction.
“MTN welcomes … that spectrum is finally being made available for auction and does not want to see the process delayed. However, the company has exhausted every procedural channel … to seek clarity on the tiering classifications and the opt-in round structure. And is now left with no other option, but to seek relief from the courts,” the company said in January.
The Africa Report understands that the MTN matter was scheduled to be heard this week, but has been postponed. Icasa is opposing MTN’s application.
ITAs invite trouble
In October 2020, Icasa issued an Invitation to Apply (ITA) for high-demand spectrum, also known as International Mobile Telecommunications spectrum, and an ITA for a Wireless Open Access Network.
This is intended to pave the way for South Africa to switch from analogue to digital and free up network resources for the progression to 5G networks. The country’s data costs are among the highest in the region. Much of the blame for this has been levelled at mobile network operators.
However, telecoms players have in their defence often cited the lack of adequate spectrum and the elevated operating costs of old network infrastructure. The ITA process was supposed to settle the debate.
But “[the] effect of this order is that Icasa cannot, at this stage, proceed with the auction and the timetable for that process will have to be revised,” the regulator said.
Icasa will have to wait for a final determination on Telkom’s application.
Despite this setback, Modimoeng remains resolute the licensing process will be finalised “in due course”. However, the Icasa chairperson’s disappointment about the latest development was palpable.
So close, yet so far
“We have never been so close to licensing high-demand spectrum,” says Modimoeng, adding, “we were literally three weeks away from auctioning this much-needed resource.”
“[That] would have seen South Africans benefit … in terms of reduced data costs and improvement in quality of service and experience. In commitment to our public interest mandate, the Council of Icasa has resolved to exhaust all legal avenues in respect of this process,” Modimoeng reveals.
Modimoeng is adamant that this is not the end of the road for Icasa, but the beginning.
The Icasa chairperson adds: “We were here in 2016, when an interdict on a similar matter was issued. That led the authority to enter into an out-of-court settlement, withdrawal of the ITA and … mediation. Such interventions took us nowhere. We are not going back there.”
Modimoeng continues: “It is our considered view that the best option is to exhaust all possible legal avenues at our disposal, including appeals to ensure this sensitive licensing process is not only defined by industry players but also by public interest. We, however, await the reasons for the judgement.”
Icasa has taken note of the fact that the primary litigant, Telkom, was also one of three applicants in the 2016 litigation. “Telkom’s opposition to this licensing process has, therefore, been consistent.”
Telkom has previously stated it is challenging the process because it is “flawed” and bears the prospect of further entrenching Vodacom’s and MTN’s market dominance.
Ministry preaches peace
Ndabeni-Abrahams, whose ministry is tasked with ensuring South Africa makes the switch from analogue to digital and has set a March 2022 for this to happen, was more conciliatory. The country has missed the deadlines multiple times and lags behind its peers in the region.
“The ministry remains open to mediation for the parties involved in order 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,” says Ndabeni-Abrahams.
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“The department remains committed and focused on completing the broadcasting digital migration project and switching off all analogue transmitters in line with the announcement made by President Cyril Ramaphosa during this year’s state of the nation address,” explains Ndabeni-Abrahams.
The national treasury’s 2019 Economic Paper lists the auction of high-demand spectrum as a potential accelerant and enabler of economic growth.
Maneli says he has “learned with keen interest about media reports regarding a court interdict on spectrum auctioning by Icasa.”
“Since the interdict, Icasa has not been invited to come and brief the committee as to what will be its next course of action.”
Maneli hopes “the matter can be resolved amicably in the best interest of the country.”
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