Communications regulator Icasa on Tuesday moved to avoid a lengthy court battle over the upcoming spectrum auction, saying it will consent to a high court order setting aside the decision to publish invitations to apply (ITAs) and saying it believes the auction could still happen by January.

The authority emphasised that it is not withdrawing the spectrum ITA or the interrelated ITA for a licence to operate a wholesale open access network (Woan).

“Icasa has now decided to consent to an order setting aside its decision to publish the ITAs in order to avoid long, drawn-out litigation, the effect of which would only be to delay further the licensing of high-demand spectrum and the Woan,” the regulator said in a statement.

“This means that the licensing of high-demand spectrum and the Woan will now be reconsidered by the authority, taking into consideration the issues raised by the litigants — such as the completion of the broadcasting digital migration process and the assessment of competition in the ICT sector,” it said.

The move will be seen as victory for Telkom, one of the litigants, which had argued that Icasa had to consider these issues before proceeding with the licensing process.

No deal (yet)

Icasa said that despite its best efforts, it had been unable to reach an out-of-court agreement. Other parties who had taken it to court were eMedia Holdings, which joined the Telkom application, and MTN, which had filed a specific objection related to 5G-suitable frequencies.

“Icasa has, over the past four months, engaged extensively and intensively with the active litigants with the intention to reach a settlement agreement so that the licensing process can proceed without further delays. Despite the parties’ best efforts, however, a comprehensive settlement has not been achieved at this stage.”

The regulator has now filed a proposed consent order with the high court and all the litigants could accept the proposed consent order or file papers opposing the proposed consent order, it said. “The matter is set down for 15 September, at which any arguments against Icasa’s consent order will be heard.”

Keabetswe Modimoeng, who chairs the Icasa council, said he is concerned about “new issues” that have been raised by the litigants during negotiations.

“We noted with grave concern that some parties at the negotiations have sought to introduce matters that were not related to the issues in dispute,” he said.

“We therefore urge all parties to confine themselves to the issues in dispute and the relief, which is sought in the papers filed of record, as venturing into other, unrelated matters can only serve to derail the confirmation of the order to which Icasa consents,” he said.

“Should the parties confine themselves to the matters currently on the table, with an appreciation that spectrum needs to be licensed urgently, on a more permanent and transparent basis, the auction of high-demand spectrum can take place by the end of January 2022.”

Icasa emphasised that it will not abandon the auction model for licensing the high-demand spectrum.

Digital migration

It also said newly appointed communications minister Khumbudzo Ntshavheni has signalled she will participate actively in “efforts to bring this litigation to an end by committing to completing the digital migration process and the processes related to it so that all perceived impediments to the licensing process are removed”.

“The current spectrum litigation impasse is nothing short of a lose-lose situation for all — consumers, industry players and the authority — as it serves to hamstring the growth of the sector and the full realisation of economic spinoffs and cost benefits for consumers.” — (c) 2021 NewsCentral Media

This article was updated to correct a misstatement that the invitations to apply for the spectrum auction and the Woan licence had been withdrawn. TechCentral regrets the earlier error