Telecommunications & postal services minister Siyabonga Cwele, through department acting director-general Joe Mjwara, has given communications regulator Icasa 15 days to produce a record of proceedings that led to its decision to push ahead with a plan to auction off valuable radio frequency spectrum.
On Monday, Cwele filed papers at the high court in Pretoria seeking to have Icasa’s decision overturned.
The minister has taken exception to the regulator’s decision to issue an invitation to apply for access to spectrum in the 700MHz, 800MHz and 2,6GHz bands, saying it flies in the face of national policy plans.
The court case looks set to test just how independent of the executive arm of government Icasa really is.
Cwele, through Mjwara, has now demanded a copy of Icasa’s record of proceedings within 15 days of its receipt of the court papers in order to supplement his court challenge.
In a founding affidavit lodged with the high court, Mjwara — who is driving the development of government’s spectrum policy as part of the national integrated ICT policy white paper process — claimed that Icasa’s requirements to participate will have the effect of “favouring a few rich and powerful to the prejudice of the rest of the role players who are entitled to utilise spectrum”.
If Icasa were allowed to go ahead, it would have the effect of “negating the balanced approach to spectrum access and open access prescribed as national policy objectives”, Mjwara said in the affidavit.
He argued that a regulatory authority, such as Icasa, should not be allowed to “usurp” the constitutional functions of another organ of state “under the guise of exercising its statutory regulatory and licensing powers”.
“That usurpation of powers affects and frustrates the policy formulations and implementation by the highest executive authority of the land, and in the circumstances where such policy formulation and implementation is imminent,” he said.
Government had been expected to publish the ICT policy white paper at the end of March. That deadline was missed as the document is still being discussed at cabinet level, according to the telecoms ministry.
Mjwara said Icasa is proceeding with the planned spectrum auction with unnecessary haste given that South Africa hasn’t completed its broadcasting digital migration programme. Digital migration must be concluded before spectrum in the 700MHz and 800MHz – currently for analogue television – can be reassigned for telecommunications.
“Other than the fact that the term of office of some council members of Icasa may come to an end before the grant or refusal of spectrum (under the published timeframes), the immediate implementation of the [invitation to apply] is not urgent,” he said.
In addition, Icasa failed to consult with Cwele prior to publishing the invitation to apply. “Such a consultation was necessary, having regard to Icasa’s knowledge of the formulation of the national policy and existence of the draft white paper,” Mjwara said. — (c) 2016 NewsCentral Media
