Telkom has confirmed it has filed an application asking the Gauteng High Court to review and set aside the Invitations to Apply (ITAs) for high-demand spectrum published by the Independent Communications Authority of South Africa (ICASA) on the 10 December 2021.
In a statement today, the company says the application includes an urgent interdict to prevent ICASA from processing any applications until the review is heard.
Telecoms regulator ICASA was set to auction the much-needed spectrum in March last year but Telkom together with other telcos approached the courts to challenge the process.
When it seemed all the parties had settled for the spectrum to be allocated in March this year, Telkom has, once again, thrown a spanner in the process.
Telkom says it has serious difficulties with ICASA’s decision to again include sub 1 GHz spectrum in the intended auction.
The telco argues that this band is currently the subject of a legal challenge brought by broadcaster Etv.
The outcome of the legal proceedings, set to heard starting on the 14 March 2022, will have a material impact on the availability of spectrum in this band, says Telkom.
Lack of clarity
According to Telkom’s group executive for regulatory affairs and government relations, Dr Siyabonga Mahlangu, the timing of the ITA is ill-conceived as the auction process does not consider the timing and impact of the findings of the legal challenge.
“This is further compounded by the lack of clarity around the WOAN [wholesale open access network] as the ITA for the WOAN has not been published,” Mahlangu continues.
Telkom notes that ICASA has indicated that it wishes to reconsider the timing of the licensing of the WOAN.
It points out that this has serious consequences for the ITA that was published in December 2021. Potential bidders like Telkom are not able to take a holistic view of the availability and conditions of access for total available spectrum before making their submissions for the auction, the telco argues.
“We would have hoped that the withdrawal of the previous ITA and referral of the matter back to ICASA for reconsideration in terms of the court order during September 2021 would have been followed by extensive consultation to understand the challenges the previous ITAs presented and avoid repetition of these in the current version,” says Mahlangu.
“Unfortunately, this did not happen and regrettably, we find ourselves in this position once again.”
“The issue of a competitive landscape is key for the entire sector and not only Telkom. The impacts of a further skewing of competition in this market, through ill-considered licensing of spectrum, will be long lasting and negatively affect the availability of services and prices to consumers,” he concludes.
Long drawn out process
Just when it seemed SA’s journey towards the release of high-demand spectrum was finally moving along, the process was stopped in its tracks by litigation instituted by Telkom, MTN and broadcaster Etv.
After failing to reach an out of court settlement with spectrum litigants, the North Gauteng High Court last month granted an order to review and set aside ICASA’s decision to publish the invitations to apply for both the high-demand spectrum and wholesale open access network.
On 1 October, the regulator revealed its truncated timetable and roadmap for the expedited licensing of the much-needed spectrum, setting a March 2022 deadline for the licensing of the International Mobile Telecommunications spectrum.
The telecoms industry has been waiting with bated breath for the release of spectrum since president Cyril Ramaphosa promised swift action in regards to allocation of high-demand radio spectrum during the 2018 State of the Nation Address.
South Africa’s allocation of spectrum has been up in the air for a number of years, with the last significant spectrum awarded 16 years ago. The last big set of spectrum issued was in the 2.1GHz band, which helped the operators in their 3G network deployment.
Unlike its African counterparts, SA is one of the few countries that have not allocated 4G/LTE spectrum on the continent. This has forced local operators to improvise, with spectrum re-farming and carrier aggregation.
For the mobile operators, spectrum allocation will help provide faster and more widespread high-speed data services. It’s expected that the freed-up spectrum will reduce the cost of data and increase access to the internet.
Additionally, for government, a spectrum auction means a boost to the fiscus.
ITWeb was still waiting for ICASA’s response at the time of publishing.
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