Icasa chairman Mothibi Ramusi has hit back at Vodacom after the mobile operator accused the communications regulator of unlawfully approving spectrum “pooling” agreements between MTN, Cell C and Liquid Intelligent Technologies.
Vodacom has said the pooling deal gave MTN an “unfair advantage” in network performance.
TechCentral first reported in May that Vodacom had filed an application with the high court seeking an urgent interdict to stop rival MTN from using spectrum pooling arrangements that it claimed were “secretly” and “unlawfully” approved by Icasa in June 2022.
But in his answering affidavit to the high court in Pretoria, Ramusi – who is the second respondent in the matter, with Icasa being the first – said Vodacom’s application should be struck from the roll due to a “self-created urgency deserving of a punitive cost order”.
“Normally, as soon as there is an apprehension of harm, a party that is likely to suffer prejudice or harm should approach the court. Vodacom has always been lethargic in its approach. Vodacom cannot seek an urgent court intervention after a period of two years has lapsed,” said Ramusi.
Ramusi said Vodacom in its founding affidavit admitted to being aware of MTN’s superior network performance “in the latter part of 2022”, meaning the company had from that moment begun to suffer the alleged harm.
Vodacom also provided the court with data showing that, at least from August 2023, it had conducted tests to support its notion that it was suffering from the alleged harm.
Not unlawful
“Notwithstanding such information at its disposal, it did nothing. Alternatively, it never bothered to approach the court or the complaints and compliance committee (CCC) of Icasa in terms of section 17C of the Icasa Act by lodging a complaint,” said Ramusi.
He said Icasa’s approval of the spectrum pooling agreements between MTN, Liquid and Cell C was not unlawful, arguing that Vodacom’s interpretation of the legality of the process is based on sections of the Electronic Communications Act (ECA) and the Icasa’s radio frequency spectrum regulations (RFSR) that do not apply to the matter.
“Icasa resolved to approve these applications in line with sections 30(2)b, 30(3) and 31(3)C of the ECA read together with regulations 18(3) and 18(4) of the RFSR of 2015,” said Ramusi.
Regulation 7 of the RFSR requires public participation before any approvals are made by Icasa. This regulation is the basis of Vodacom’s argument that Icasa approved the spectrum agreements in “secret”. Mothibi said regulation 7 does not apply as it deals with situations where there is insufficient spectrum to meet demand. “Respectfully, that is not the issue here,” he said.
The second reason for Vodacom alleging that Icasa ought to have engaged in a process of public participation is regulation 15 of the RSFR, which deals with permission to assign, cede or transfer control of a spectrum licence. Ramusi said this regulation is also not applicable, because the issue at hand is “spectrum sharing”.
“Regulation 15 only confines itself to assignment, cession and transfer over spectrum. The omission of spectrum sharing is deliberate. This is so because spectrum sharing is regulated by regulation 18 and not by regulation 15,” said Ramusi.
Ramusi also slammed Vodacom for addressing matters that are not in the high court’s jurisdiction before approaching Icasa’s CCC. In its founding affidavit to the court, Vodacom alleged that MTN illegally made use of spectrum guard bands – slivers of spectrum between those assigned to different licensees that are kept clear to reduce interference between different parties in its implementation of its shared spectrum agreements with Cell C and Liquid.
“Whether the issue of guard bands has merit or not is a matter for the complaints and compliance committee and not the high court,” Ramusi said.
He said that, equally, the issue of the transfer or cession of spectrum is also not in the court’s jurisdiction. According to his affidavit, Icasa made it a condition that, in the case of spectrum sharing, each party must retain its identity, autonomy, independence and control.
“Any matter that relates to the breach of the sharing conditions must be referred to the CCC for adjudication. This court cannot perform the duties of the CCC,” he said. – © 2024 NewsCentral Media
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