Cell C has slammed telecommunications regulator, the Independent Communications Authority of SA (Icasa), over its invitation to apply for valuable radio frequency spectrum, accusing the authority of opening itself up to legal challenge and of producing a document “so vague so as to not be capable of proper interpretation”.

The criticism is contained in the operator’s submission to Icasa in response to a draft spectrum assignment plan and a draft invitation to apply for access to spectrum in the highly prized 800MHz and 2,6GHz radio frequency spectrum bands. Efficient assignment of spectrum in the bands is seen as crucial to delivering next-generation broadband services to South Africans and to overcoming the so-called “digital divide” between connected urban citizens and those living in rural areas.

Icasa is opening itself to legal action on a number of grounds, Cell C warns in the submission.

The operator says it appears there has not been any co-ordination between Icasa and the department of communications in relation to the draft documents. “This is lamentable given the requirements of the constitution in relation to cooperative governance,” it says. “The administrative law implications are also extremely serious [and] include the failure by Icasa to adhere to the requirements of the Electronic Communications Act.”

Cell C says the constitution guarantees the right to just administrative action that is “lawful, reasonable and procedurally fair”.

In terms of the Electronic Communications Act, Icasa must consider policies and policy directions from the minister of communications, it adds. “If it appears that Icasa has failed to consider ministerial policy directions (taking all relevant factors into account), [it] may be considered to be acting outside its mandate and so unlawfully.”

It says the radio frequency spectrum regulations published by Icasa in 2011 suggest it did not obtain approval from the minister for a spectrum assignment plan and that its plans to migrate the frequencies used by iBurst parent Wireless Business Solutions and state-owned Sentech, contained in the draft documents, could “render the proposed migration invalid”.

“Cell C does not understand … why Icasa did not wait for the draft policy directions from the department of communications to be finalised prior to embarking on a nationally important programme to allocate valuable spectrum,” it says.

“It is our view that, were Icasa to attempt to finalise the draft plan or the draft invitation to apply in the absence of the final version of the draft policy directions or in spite of consultations presently being conducted by the department of communications with regard to the draft policy directions, that action would be challengeable under principles of administrative justice.”

In addition, Cell C says that when considered with other issues in its submission to Icasa, it is clear that the authority’s draft documents could also be considered to be “so vague so as to not be capable of proper interpretation, never mind implementation, which in fact would render them capable of being challenged on this basis alone under the principles of administrative justice”.

The operator is also worried about the universal service obligations that Icasa wants to impose on successful applicants for spectrum. Those with access to both the 800MHz and 2,6GHz bands are expected to provide 70% geographic coverage within five years, of which 50% must exclude Gauteng, Cape Town and Durban. Those with access to 2,6GHz only must provide 50% population coverage within four years.

“These are highly ambitious targets, especially with regard to new entrants,” it says in the submission. “It is also highly unlikely that such [targets] can be met in an economically feasible manner [and] the consequence of this is that the successful licensee may need to increase its retail costs accordingly, such that Icasa’s objective of ‘broadband for all citizens’ is thwarted.”

Cell C has raised a number of other concerns it has over the process, including a plan by Icasa to reserve spectrum for entities that do not already have access to cellular spectrum. It says this could have a “poor outcome” because those companies are “not likely to be able to afford to roll out networks in underserviced or rural areas”.

“Icasa has not given any explanation or reasoning behind its decision to reserve spectrum in this way,” it says.

“In our view, the weight of issues that would benefit from clarification is so great, and risk of legal challenge so real, that it makes sense for Icasa to withdraw the draft plan and draft invitation to apply and wait for the minister to finalise the draft policy directions.” — Duncan McLeod, TechCentral