Late last year, ICASA issued draft invitations to apply for high-demand spectrum in the 800MHz and 2.6GHz bands, as well as a draft frequency plan.
However, the documents were issued before the Department of Communications (DOC) wrapped up the policy directive, raising the ire of operators who pointed out that the process was flawed and could be challenged.
This morning, the regulator said it was postponing licensing until “further notice” to ensure that communications minister Dina Pule's policy direction on high-demand spectrum is “taken into consideration”. Operators had until last Wednesday to file submissions on ICASA's proposed frequency allocation and allocation plan.
ICASA has received more than 20 submissions. However, SA's largest cellular operators have pointed out that the regulator's proposals are flawed and will not lead to the desired outcomes, which includes expanding coverage in rural areas.
MTN, SA's second largest cellular operator, says in its submission “the allocation of high-demand spectrum is probably the most important public policy decision and implementation of such policy in the sector since the liberalisation of the licensing regime.“Getting it right will mean the creation of thousands of jobs, billions of rands of growth and an increase in rural connectivity. Of course, it means getting it wrong will mean the opposite.”
MTN says the draft spectrum frequency plan and invitation to apply “carries a high risk of regulatory failure”. It argues that ICASA is awarding spectrum hoarders, trying to exclude incumbents at the network level, and fragmenting the market.
The operator also argues that ICASA's allocation is rushed and sometimes arbitrary, as 40% of spectrum is allocated to Sentech, Wireless Business Solutions and Neotel, at the “stroke of a pen”.
Cell C warns in its submission that the regulator was attempting to deal with allocating a national resource in the “absence of specific policy directions”.
The operator says if ICASA finalises the draft invitation to apply or the draft spectrum plan, while the Department of Communications (DOC) is dealing with draft policy directions, “that action would be challengeable under the principles of administrative justice.
“It is clear that ICASA's draft plan and draft ITA could also be considered to be so vague so as to not be capable of proper interpretation, never mind implementation.”
The operator says the drafts raise more questions rather than providing clarity as to the future of licensing in the “all-important” 800MHz and 2.6GHz bands.
Cell C says ICASA should withdraw the plans and wait for the minister to wrap up policy directions as “the weight of issues that would benefit from clarification is so great, and the risk of legal challenge so real”.
Vodacom's submission points out the draft spectrum assignment plan and draft ITA were, in an unprecedented move, published by ICASA the day after the DOC issued draft policy directives.
“Without significant additional time to consider, clarify and modify the current proposals, it appears to us that the most valuable spectrum to become available in SA will not be put to best use.”
Vodacom argues that the draft will limit the ability to current operators to secure spectrum and invest in new technology, such as LTE, which is likely to lead to “limited roll-out and high prices for new services”.
The operator says the minister's directive should form part of the allocation process, and the consultation phase around issuing more frequency should be halted until the policy direction has been issued.
“Vodacom is of the view that the submissions on the draft assignment plan and draft ITA are likely to constitute abortive work.”
Fixed-line operator Telkom says spectrum policy should be informed by the state's national broadband policy or strategy and not the other way around, “as currently seems to be the case”. It says ICASA's proposed process is premature.
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