Communications regulator Icasa said on Friday that it will oppose MTN South Africa’s urgent court application challenging a plan that could see smaller operators get first dibs at a crucial band for 5G telecommunications.

MTN is unhappy with the way Icasa intends making access to the 3.5GHz radio frequency band available in the upcoming spectrum auction, which is set to take place in late March .

The mobile provider is aggrieved because it believes smaller operators — those other than MTN and Vodacom — will get access to the band, which is key for delivering next-generation 5G broadband services, leaving nothing for the bigger players.

Icasa said on Friday that it has instructed its lawyers to oppose MTN’s application. “The authority would like to point out that it has been in constant communication with MTN on the issues raised in its court application. It is unfortunate that MTN has elected to proceed with instituting legal proceedings … under these circumstances,” it said in a statement.

“This latest litigation attempt is characteristic of either impatience or a subtle desire to channel the authority’s decision-making outlook. We, however, remain steadfast and will defend the process against these challenges,” said Icasa chairman Keabetswe Modimoeng.

MTN filed papers in the high court in Pretoria on Wednesday. In its application, it asks the court to declare Icasa’s process for awarding the 3.5GHz spectrum “unlawful”, wanting it reviewed, corrected or set aside.

Two tiers

At the heart of MTN’s complaint is Icasa’s decision to implement an auction structure that creates two tiers of mobile operator. Only Vodacom and MTN are defined as tier-1 operators, with Telkom, Liquid Telecom, Cell C and others in tier 2.

Icasa plans an opt-in auction round in which tier-1 operators will be barred from participating. MTN wants clarity on the tiering classifications and the opt-in round structure. It said it has no other option than to turn to the high court after exhausting communication channels with Icasa.

MTN is challenging the definitions used by the regulator to differentiate tier-1 and tier-2 operators, arguing in its court papers that the definitions used are vague, arbitrary and unreasonable. The company is worried that, as the spectrum auction plan currently stands, smaller operators will get all of the available frequencies at 3.5GHz in the opt-in phase, precluding MTN from deploying 5G in a band that is a cornerstone of early 5G deployments around the world and which is widely supported by original equipment manufacturers, including smartphone vendors.

But Icasa is having none of it. It said on Friday that it intends to “defend” the process “to the end” given that it is crucial for South Africa’s economic development.

“At this stage, industry players and all stakeholders need to reflect on the extent to which their commercial interests ought to override patriotic considerations,” said Modimoeng. “We believe that this licensing process has been balanced, with no room for a winner-takes-all attitude.

“Furthermore, the fact that the respective litigants are uncomfortable for diametrically different reasons is indicative of a delicate balance that the authority has struck in its decisions,” he said, in reference to a separate high court application brought by Telkom. “The process cannot be tailored for the narrow fulfilment of one or two specific mobile operators.

“The authority would like to urge all South Africans not to be alarmed by the latest litigation. The process for licensing of high-demand spectrum will continue as planned unless there is a court order issued to delay or halt the process,” he added.

“We will go to court and argue our case in defence and furtherance of Icasa’s public-interest mandate. We will do so because South Africans deserve to benefit from the imminent release of the radio frequency spectrum through reduced data costs, improved network quality and rural broadband coverage.” — © 2021 NewsCentral Media