Telkom is taking Icasa to court to try to stop the communications regulator’s planned withdrawal of temporary spectrum at the end of next month, saying the move would disrupt the provision of services and harm consumers.

Icasa originally made the spectrum available on an emergency basis in April 2020 to interested licensed operators due to the Covid-19 pandemic. It has since extended the allocation of the temporary spectrum on several occasions. However, it said on 31 August that it intended to withdraw the spectrum on 30 November 2021 as it was never meant to be licensed in perpetuity.

The regulator said it was worried that extending the granting of the spectrum indefinitely would distort the market and was unfair to licensees that chose not to apply for it back in 2020. It also suggested it was no longer needed as many people had returned to their offices and were therefore no longer placing extra demands on mobile networks.

It will have a significantly prejudicial effect on Telkom, other mobile operators, the greater public and the functioning of the national economy

But in his founding affidavit to the high court in Pretoria, Telkom group executive for regulatory affairs and government relations Siyabonga Mahlangu said the “rationale and need for temporary spectrum persist”. He said health experts speculate that South Africa may experience a fourth wave of Covid soon, forcing people back into home offices, making them reliant again on mobile services.

Mahlangu said there was a surge in demand on Telkom’s mobile network as a result of the work-from-home measures. “In Telkom’s case, mobile network data traffic jumped from almost 72 petabytes in March 2020 to more than 87PB in April 2020,” he said. A petabyte is roughly equal to a million gigabytes. “This set a new growth baseline in the network, with four months in 2021 exceeding 85PB by August 2021, and a new peak of 92PB in July 2021.”

‘Lawful, fair and reasonable’

Mahlangu said Telkom has “a right to an administrative action that is lawful, fair and reasonable”. It said Icasa’s decision to withdraw the spectrum is none of these because:

It failed to consult the public, including Telkom and its customers, before taking the decision.
It took into account irrelevant considerations and disregarded relevant ones.
The decision is not rationally connected to the purpose for which it was taken.

He said Telkom also has a “prima facie right” under the Electronic Communications Act to a “stable ICT sector and no undue interference in its commercial activities”.

“The licence conditions and provisions of the act can only be given full effect if Icasa regulates in a manner that is consistent with the underlying legislation and policy frameworks,” Mahlangu said in the affidavit. “Should this not be met, Telkom is unable to meaningfully play its role in the promotion of ICT stability and support of commercial activities, and the larger public interest.

“Should Icasa not be directed to extend the licensing of temporary radio frequency spectrum or refrain from requiring current holders of licences to cease using their licences, it will have a significantly prejudicial effect on Telkom, other mobile operators, the greater public and the functioning of the national economy,” he said.

Furthermore, the removal of temporary spectrum will have a “major impact on Telkom’s network”.

“A reduction in network capacity will lead to decreased performance and throughput and increased latency” and the permanently assigned spectrum “will not be able to cater for the network traffic demand, which will result in severe congestion on the network and a decrease in network quality”.