The Independent Communications Authority of South Africa (ICASA) says it accepts the judgement of the North Gauteng High Court last week, which has effectively halted its radio frequency spectrum auction planned for next year.
ICASA says in a statement it "has noted the decision of judge Sutherland, and is considering its contents".
On Friday, telecommunications and postal services minister Siyabonga Cwele succeeded in his bid to halt ICASA's spectrum auction process. Judge Roland Sutherland ruled ICASA "is interdicted and prevented from implementing the licensing steps and processes referred to or contemplated in the invitation to apply" (ITA) notice issued in July.
The judgement also interdicted ICASA from accepting any bids for the ITA and from taking any steps to advance the ITA, "pending an application by Cell C to launch review proceedings in respect [of] the invitation to apply, provided the review application is served by 14 October 2016".
Friday's interdict ruling was only part A of the case. Part B must still be heard by the High Court and includes a review of the process that ICASA followed in issuing the ITA. The Department of Telecommunications and Postal Services says a date has not yet been set for part B, but it will likely be sometime next year. There is also a parallel case initiated by Cell C, which brought an application for the identical interim relief (part A) and also intends to bring a review application in due course.
On 15 July, ICASA announced the process for the licensing of spectrum in the 700MHz, 800MHz and 2.6GHz bands, to be used to provide mobile broadband wireless access services in SA. The auction was originally planned for January 2017 but ICASA postponed it to May next year.
Cwele challenged the licensing process because his ministry believed ICASA should have waited until the department had finalised its National Integrated ICT Policy White Paper before initiating the ITA. Last week, Cabinet finally approved the white paper, which has been sitting before it since March.
The judgement
"At a first glance, ICASA is pleased to note its independence was asserted in the judgement and the judge said no cogent argument is shown why a court should trump ICASA's choice not to wait indefinitely for the minister's policy to see the light of day," the regulator says.
Additionally, the judge said ICASA has not been shown to have breached any positive duty imposed on it to promote competition and also that the onus to show an irregularity by ICASA was not satisfied. However, the judge essentially found "the controversy is confined to the implications flowing from the presence of non-mobile operators ? at present assigned space in the spectrum".
Despite ICASA arguing that policy "delays by the minister were no longer tolerable", the judge ultimately concluded that ICASA cannot migrate the current non-mobile users without the minister's participation and an orderly process requires co-ordination between the minister and ICASA.
"The judgement states the assignment of spectrum already assigned to other operators is therefore found to be possibly an irrational decision. Accordingly, given the judge's view, ICASA may not proceed with the ITA pending the outcome of the review process," says ICASA.
Open access
The policy of issuing spectrum has been changed by the new National Integrated ICT Policy White Paper, which says radio frequency spectrum is now to be allocated on an open access basis.
"Historically, spectrum for mobile has been assigned to individual licensees who are then given exclusive rights to it for a defined period in a defined geographic area. The new spectrum management regime set out in this policy encourages that licensees work together as far as it is practicable. This includes through the deployment of a wireless open access network," minister Cwele said while outlining the new policy at a press briefing in Pretoria on Sunday.
"The value of sharing and collaboration between licensees is that it will result in the more effective use of a scarce resource (spectrum) and the reduction of the duplication of infrastructure while facilitating services-based competition."
In terms of high demand spectrum bands, the minister said "high demand spectrum will be assigned on an open access basis".
"All currently unassigned high demand spectrum will be set aside for assignment to the wireless open access network and will be treated in line with the above policy principle," he added.
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