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ICASA Cancels Spectrum Auction in Attempt to Avoid Lengthy Court Battle

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Luis Monzon
Luis Monzon
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The Independent Communications Authority of South Africa (ICASA), the country’s communications regulator, has announced that it will not be publishing invitations to apply (ITA) to participate in the long-awaited auction of high-demand spectrum in South Africa.

ICASA says that the move was made to avoid a lengthy court battle against several litigators that had issues with how ICASA was handling the auction. The regulator is likewise withdrawing an ITA for the licensing of the planned wholesale open-access network (WOAN), pending court approval.

“ICASA has now decided to consent to an order setting aside its decision to publish the invitations to apply (ITAs) in order to avoid a long, drawn-out litigation, the effect of which would only be to delay further the licensing of high-demand spectrum and the wireless open-access network (WOAN),” the firm said in a statement.

With the ITAs now set aside, the highly anticipated spectrum auction that would see the assignment of spectrum licenses to SA’s largest telcos and broadcasters is now inevitably postponed. The regulator now says that it will reconsider the licensing process of the high-demand spectrum and WOAN.

“This means that the licensing of high-demand spectrum and the Woan will now be reconsidered by the authority, taking into consideration the issues raised by the litigants — such as the completion of the broadcasting digital migration process and the assessment of competition in the ICT sector,” it said.

According to Tech Central, ICASA had not been able to find an out-of-court agreement between itself and the other parties who had taken the regulator to court over the auction, including operators MTN and Telkom, and television broadcaster eMedia.

“ICASA has, over the past four months, engaged extensively and intensively with the active litigants with the intention to reach a settlement agreement so that the licensing process can proceed without further delays. Despite the parties’ best efforts, however, a comprehensive settlement has not been achieved at this stage,” the regulator said.

A new proposed consent order has been filed by ICASA with the country’s high court, leaving it open to litigants to either accept the order or file papers to oppose, in any case, ICASA says that the matter is currently set down for 15 September, at which point any arguments against the new consent order will be heard.

“Should the parties confine themselves to the matters currently on the table, with an appreciation that spectrum needs to be licensed urgently, on a more permanent and transparent basis, the auction of high-demand spectrum can take place by the end of January 2022,” said Keabetswe Modimoeng, executive chairperson at ICASA.

South Africa’s Spectrum Debacle

Both MTN and smaller operator Telkom had appealed to courts about the planned structure of ICASA’s spectrum auction.

MTN argues that ICASA’s need to prioritise smaller operators means that, as a much larger tier-1 operator, it will be shut out of bidding for new 5G spectrum which MTN believes is essential to its business.

Telkom, on the other hand, fears that larger operators are hogging the spectrum and ICASA has no plans to make more bandwidth available to allow smaller providers to have a competitive edge. ICASA’s latest decision to withdraw ITA to participate in the auction can be seen as a win for Telkom, in this matter.

“The current spectrum litigation impasse is nothing short of a lose-lose situation for all — consumers, industry players and the authority — as it serves to hamstring the growth of the sector and the full realisation of economic spinoffs and cost benefits for consumers,” ICASA says.

By Luis Monzon
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