South Africa’s big network capacity fight — court dates set

The Pretoria High Court will hear arguments in Telkom’s case against the Independent Communications Authority of South Africa (Icasa) over the auctioning of long-awaited radio frequency spectrum on 11–14 April 2022.

The Acting Judge President confirmed the dates today after a meeting of the parties involved in the case.

This comes after Telkom asked the respondents to agree to an expedited hearing on the merits of its case.

In exchange, Telkom said it would drop its interdict against the auction.

“Telkom is pleased with the cooperation from the parties in reaching agreement on expediting the court process to finalise the hearing of the merits of Telkom’s arguments against the [invitation to apply] and the process leading up to it being issued,” the company said in a statement.

“As indicated by parties at the meeting with the Acting Judge President, the regulator… would now be expected to carefully consider the prudence of proceeding with the auction,” Telkom warned.

The partially state-owned telecommunications operator said that Icasa must be mindful that the outcome of the hearing of its case may have a material impact on the process and outcomes of the auction.

Telkom says that it has reserved its rate to reinstate its interdict should it “become necessary at any point”.

MTN, Icasa, Vodacom, Rain, and communications minister Khumbudzo Ntshavheni filed papers opposing Telkom’s application.

Telkom said there are significant problems with Icasa’s spectrum licensing process:

1. Analogue TV spectrum — known as the “digital dividend” — remains occupied, even in areas where Icasa said it should be vacant. Telkom is especially keen on this lower-frequency spectrum.
2. E-tv owner eMedia has a court case against Ntshavheni and Icasa about its analogue TV spectrum that will only be heard in mid-March — after the spectrum auction is set to conclude.
3. Doesn’t consider the competitive landscape.
4. Uses uniform caps on the amount spectrum each operator can hold — a major disadvantage for Telkom that holds a substantial amount of higher-frequency spectrum.
5. Delay of the national wireless open-access network (WOAN).

Telkom asked the court to issue an order forcing Icasa to essentially restart the spectrum process, as follows:

• Launch public consultations on the various options available to license spectrum, including the effect of each option on competition in the market.
• Public consultations on the minimum requirements for the WOAN to be effective, including the spectrum it will need.
• Publish a draft invitation to apply and invite interested parties to submit feedback before finalising it.
• Implement remedies that compensate for the event that E-tv might occupy some of the digital dividend spectrum at the time of licensing.

If Telkom wins, it will result in Icasa being forced back to the drawing board.

Ellipsis Regulatory Solutions founder Dominic Cull has said that would delay the release of additional spectrum by at least 15–18 months.

MyBroadband asked Icasa for comment, but the regulator did not respond by the time of publication.

Now read: Spectrum chaos in South Africa