The Independent Communications Authority of South Africa (ICASA) will launch an urgent appeal against the North Gauteng High Court’s decision to grant Telkom and Etv an interdict against the high demand spectrum auction.
ICASA said its Council had taken legal advice and resolved to pursue an expedited appeal against the decision, which may include directly petitioning the Constitutional Court.
“We are of the view and have been accordingly advised that there are good grounds for an appeal on this particular matter. Hence we are going ahead with such an appeal,” said ICASA Chairperson Keabetswe Modimoeng.
ICASA said it was mindful that the legal process may not be the only option to resolve the matter.
“As such, the Authority is also exploring entering into settlement discussions with active litigants in this matter whilst the legal processes are unfolding,” it stated.
However, Modimoeng said that ICASA will not be entering into any mediation process, as was previously called for by the Internet Providers’ Association of South Africa (ISPA) and the Minister of Communications and Digital Technologies.
The ICASA Council added it was of the utmost importance that the spectrum be licensed and that all avenues be pursued to avoid further delays in the process.
Concern over analogue TV signals
The auction of high demand spectrum was originally set to take place at the end of March 2021 but was delayed due to the interdict being granted.
The companies asked the court to stop the spectrum auction from going ahead until their case concerning the assignment of spectrum in the 700MHz – 800MHz band can be heard.
According to Telkom and Etv, this spectrum cannot be allocated until South Africa’s digital migration process is completed, as this spectrum is used for analogue TV broadcasting.
While Telkom wants digital migration to be completed by 30 June 2021, the Department of Communications and Digital Technologies has laid out a timeline that showed that this may only be done by March 2022.
If Telkom and Etv are successful in their litigation but the deadline for digital migration remains unchanged, the allocation of the 700MHz and 800MHz spectrum, which is a crucial part of the spectrum set to be auctioned, will likely only take place after March next year.