SA High Court ruling postpones ICASA’s spectrum auction process
The Independent Communications Authority of South Africa notes the outcome of Telkom’s application to interdict ICASA from proceeding with the auction process in terms of the Invitation To Apply (“ITA”) for high demand spectrum or International Mobile Telecommunications (“IMT”) spectrum as well as the ITA for the Wireless Open Access Network (“WOAN”) both of which were issued on 2 October 2020.
The High Court has issued an order interdicting and restraining ICASA from proceeding with the auction process pending the final determination of Telkom’s application to review ICASA’s decision to publish the two ITAs. The effect of this order is that ICASA cannot at this stage proceed with the auction process and the timetable for that process will have to be revised.
In receiving the court order, the Chairperson of ICASA, Dr Keabetswe Modimoeng expressed his utmost confidence in the judiciary and though dismayed by the decision, remains resolute that the licensing process shall in due course be finalised.
“We have never been so close to licensing high demand spectrum. We were literally three (3) weeks away from auctioning this much-needed resource that would have seen South Africans benefit through this process in terms of reduced data costs and improvement in quality of service and experience. In commitment to our public interest mandate, the Council of ICASA has resolved to exhaust all legal avenues in respect of this process.”
Chairperson of ICASA, Dr Keabetswe Modimoeng
The Authority has also taken note of the fact that the primary litigant in this matter (Telkom); was also one of the three applicants in the 2016 litigation. Telkom’s opposition to this licensing process has therefore been consistent.
“We were here in 2016 when an interdict on a similar matter was issued, and that led the Authority to enter into an Out-of-Court settlement, withdrawal of the ITA and other forms of mediation. Such interventions took us nowhere. We are not going back there. It is our considered view that the best option is to exhaust all possible legal avenues at our disposal, including appeals so to ensure that this sensitive licensing process is not only defined by industry players but also by the public interest. We, however, await the reasons for the judgement.”
Chairperson of ICASA, Dr Keabetswe Modimoeng
The delay in the licensing of high demand spectrum has huge implications in terms of competition in the mobile services market as well as reduction of cost to communicate particularly data costs for consumers and business. For as long as there is an interdict in place, South Africans will continue to bear the brunt for high data costs, ineffective competition and a deprived economy. But ICASA remains confident and forward-looking to ensure that South Africans ultimately benefit from this licensing process.
