Telecommunications & postal services minister Siyabonga Cwele will institute legal proceedings against communications regulator Icasa to stop the agency from going ahead with a plan to allocate access to radio frequency spectrum for wireless broadband.
On 15 July, Icasa issued an invitation to apply (ITA) for access to spectrum to provide next-generation 4G/LTE services using the 700MHz, 800MHz and 2,6GHz frequency bands.
The move was unexpected given that the telecoms department had not finalised a white paper on integrated ICT policy, which was expected to provide direction on how the spectrum would be allocated.
It’s now clear that the move by Icasa has enraged Cwele, who said in a statement on Monday evening that he intends suing the regulator to stop the auction from going ahead.
“After considering the ITA and on the advice of senior counsel, the minister intends taking legal action to review the actions of Icasa,” his office said in a statement.
“The minister’s decision follows two meetings held with the regulator on 15 and 19 July 2016 that failed to resolve the matter amicably. Icasa was furthermore not prepared to subject itself to the intergovernmental cooperation governance procedures,” the ministry said in the statement.
“The position of government is that it is the custodian of spectrum, which is a national and public resource and whose utilisation must benefit all the people of South Africa,” it added.
“There is presently no policy direction on spectrum that has been issued. The policy process is ongoing but as yet still incomplete.
“In taking its decision to go ahead and by publishing its notice, Icasa has failed to adhere to the prescripts of the relevant policies, legislation and regulations, and in particular the provisions of [the] Electronic Communications [Act].
“In addition, a request to Icasa by government in September 2015 to halt this process, after they published the information memorandum for international mobile telecommunications, was ignored.
“The minister is concerned that Icasa’s invitation to apply for the auctioning of the spectrum was issued without consultation and prior notification to government as the policy maker. A further concern is the haste with which Icasa is proceeding to dispose of the spectrum given that this spectrum will not be immediately available.
“The minister is acting in good faith to ensure that interested parties who may wish to respond to Icasa’s ITA do not act precipitously by engaging in a process which may ultimately be found to be invalid and therefore suffer unintended consequences as a result thereof.”
It’s not known when government’s ICT policy white paper will be published. The last communication on the subject from the ministry suggested it was being discussed at cabinet level.
Operators, including Vodacom, Cell C, MTN and Telkom, have been champing at the bit for access to new spectrum to allow them to extend 4G/LTE services to more South Africans.
Icasa’s move comes despite the fact that broadcasters are still using the spectrum at 700MHz and 800MHz for analogue television services. These so-called “digital dividend” bands will only become available for broadband once South Africa has completed its migration from analogue to digital terrestrial television.
In its ITA, Icasa set a reserve price of R3bn for each of four lots of spectrum it intends making available to interested operators. Those who are successful must meet tough roll-out targets and each must help launch three mobile virtual network operators, which must be at least 51% held by historically disadvantaged groups. — © 2016 NewsCentral Media
