Communications regulator Icasa on Tuesday confirmed that Monday’s court judgment in favour of Telkom means the spectrum auction cannot proceed later this month as scheduled. The agency is now preparing for a legal battle.
Telkom secured an interdict against Icasa in the high court in Pretoria preventing the regulator from proceeding with adjudicating bids and proceeding with the auction.
The judgment is a blow to South Africa’s telecommunications industry as mobile operators will now have to wait months – and possibly years – until the spectrum auction can go ahead. A best-case outcome now would be an out-of-court settlement, possibly through mediation – an idea broached last week by the Internet Service Providers’ Assocation.
“The high court has issued an order, without reasons, interdicting and restraining Icasa from proceeding with the auction process pending the final determination of Telkom’s application to review Icasa’s decision to publish the two invitations to apply (for the auction and for a wholesale open-access network, or Woan),” Icasa said in a statement on Tuesday. “The effect of this order is that Icasa cannot at this stage proceed with the auction process and the timetable for that process will have to be revised.”
Icasa chairman Keabetswe Modimoeng expressed dismay at the court ruling but said the agency “remains resolute that the licensing process shall in due course be finalised”.
‘Never been so close’
“We have never been so close to licensing high demand spectrum. We were literally three weeks away from auctioning this much-needed resource that would have seen South Africans benefit through this process in terms of reduced data costs and improvement in quality of service and experience. In commitment to our public interest mandate, the council of Icasa has resolved to exhaust all legal avenues in respect of this process.”
On mediation and the possibility of an out-of-court deal, Modimoeng has dug in his heels. “We were here in 2016 when an interdict on a similar matter was issued, and that led the authority to enter into an out-of-court settlement, withdrawal of the invitation to apply and other forms of mediation. Such interventions took us nowhere.
“We are not going back there. It is our considered view that the best option is to exhaust all possible legal avenues at our disposal, including appeals, so to ensure that this sensitive licensing process is not only defined by industry players but also by the public interest.”
He said, too, that Icasa has “taken note” that the “primary litigant in this matter (Telkom) was also one of the three applicants in the 2016 litigation. Telkom’s opposition to this licensing process has therefore been consistent.”
In response to the interdict being granted to it, Telkom group executive for regulatory affairs and government relations Siyabona Mahlangu said: “This decision affirms our view that there are concerns regarding the lawfulness of the Icasa process. While we wait for the court to hear the review, we implore Icasa to engage and explore a path to license spectrum lawfully, rationally and expeditiously. We hope Icasa will take this opportunity to reflect on the issues raised by Telkom and others.”
Vodacom, which has repeatedly expressed a desire for the auction to proceed at the end of March without any further delays, said: “Vodacom is disappointed that the process will be further delayed and remains supportive of the spectrum auction proceeding as soon as possible. Vodacom has not been given permanent access to new high-demand spectrum in 15 years. As we have said previously, the award of new spectrum remains a critical part of reducing input costs and – by extension – the cost of data. The long-term assignment of high-demand spectrum is vital to expanding broadband services and promoting digital inclusion, thus further delays will have a negative impact on consumers.” — © 2021 NewsCentral Media