“Dire consequences” for mobile data in South Africa — MTN sues Icasa over emergency spectrum

MTN has filed papers in the North Gauteng High Court to block the Independent Communications Authority of South Africa (Icasa) from taking back radio frequency spectrum assigned as an emergency measure shortly after the start of the Covid-19 pandemic.

It joined Telkom’s case to interdict Icasa and filed papers of its own to raise additional points for the court to consider.

Spectrum is the raw network capacity that cellular operators like Vodacom, MTN, Telkom, Cell C, and Rain use to offer services.

It enables the communication between their towers and devices like smartphones and Wi-Fi routers.

In MTN’s court application, chief corporate services officer Graham de Vries asks the court to force Icasa to only give back the spectrum three months after South Africa’s national state of disaster has ended.

Currently, Icasa’s regulations state that the temporary spectrum is valid until a specified date (now 30 November 2021) or three months after the national state of disaster, whichever comes first.

Icasa initially set the end of November last year as the expiry date for the emergency spectrum. It has been extending it by three months every time the expiry date comes up after hearing appeals from the industry.

Most recently, Icasa announced that it was taking away the temporary spectrum and gave operators until 30 November to decommission or migrate the parts of their networks that use it.

Dr Keabetswe Modimoeng, ICASA Executive Chair
Keabetswe Modimoeng, ICASA Executive Chair

While the spectrum assignments were always temporary, the industry was confounded that Icasa would take it back when experts forecast that South Africa would experience a fourth wave of Covid–19 from the start of December.

Icasa chair Keabetswe Modimoeng said during a recent interview on Newzroom Afrika that they believe the situation in South Africa has changed enough to justify clawing back the spectrum.

However, feedback from South Africa’s mobile network providers painted a very different picture.

Cell C, MTN, Telkom, and Vodacom explained that their network traffic volumes had remained high throughout the pandemic.

In the court papers, De Vries says that MTN saw unprecedented growth in data traffic when South Africa’s state of disaster began, which also impacted the quality of service on its network.

He said that data throughput on 4G degraded to approximately 8Mbps shortly after the commencement of the lockdown measures in March 2020.

“After the award of MTN’s temporary spectrum licence, throughput improved to 12Mbps and peaked at 15.6Mbps in November 2020,” stated De Vries.

“However, in early 2021 (during the second wave of Covid-19 infections) it began to decline again to 10Mbps in early 2021. This is testament to the fact that data traffic is still growing and that there is a clear need for the temporary radio frequency spectrum to keep MTN’s network stable”.

He warned that if Icasa took back the temporary spectrum, the consequences to MTN’s network would be dire.

MTN echoed Telkom’s arguments that the temporary spectrum must remain in place for the duration of South Africa’s national state of disaster due to Covid-19.

Telkom has argued that Icasa’s decision is irrational, based on irrelevant considerations, unreasonable, procedurally unfair, and based on an error of fact.

MTN has added to this by arguing that Icasa will cause mobile operators to fail to abide by the disaster regulations issued by former communications minister Stella Ndabeni-Abrahams.

“The Minister has directed that operators’ must ensure continued service provision’ during the national state of disaster. This is not possible without the additional spectrum made available through the temporary spectrum licences,” De Vries stated in MTN’s founding affidavit.

“The impugned decision is therefore unreasonable and irrational because it makes it impossible for MTN to comply with the obligations imposed on it by the [Minister’s] Directions.”

De Vries also argued that Icasa would be in contravention of the disaster management regulations for the telecommunications industry if it revokes the temporary spectrum.

This is because the Minister’s directions stipulate that Icasa must, to the extent possible, “relax spectrum regulations to enable the temporary licensing of all available spectrum bands including the unassigned high demand spectrum for the duration of the Covid-19 national disaster”.

For this reason, De Vries argues that Icasa must be forced to change its regulations for the temporary spectrum to only expire three months after the national state of disaster due to Covid-19 ends.

This is the only way Icasa could bring its regulations in line with the directions issued by the Minister of Communication and Digital Technologies at the time, he says.

Now read: Vodacom, MTN, and Telkom trying to exploit Covid–19 disaster — Rain CEO

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“Dire consequences” for mobile data in South Africa — MTN sues Icasa over emergency spectrum