Government in last-ditch emergency spectrum deal effort

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Communications and digital technologies minister Khumbudzo Ntshavheni.
Communications and digital technologies minister Khumbudzo Ntshavheni.

Government is making a last-ditch effort to broker a deal between mobile operators and telecoms regulator the Independent Communications Authority of South Africa (ICASA), over the expiry of the temporary spectrum.

The Department of Communications and Digital Technologies is frantically engaging the operators and ICASA to find an amicable solution to the impasse ahead of another court battle, which begins tomorrow.

ICASA announced in August that it will be withdrawing the temporary radio frequency spectrum assigned to operators by no later than 30 November.

The move irked the telcos, prompting them to approach the courts, seeking an interdict.

Telkom took the matter to court and is supported in the battle by its peers MTN and Vodacom.

The matter will be heard tomorrow, as the mobile operators seek a court order that prevents ICASA from withdrawing temporary spectrum licences from 30 November.

The group also wants the court to set aside the regulator’s decision not to extend these licences.

The mobile operators argue that revoking the emergency spectrum will have a significant prejudicial effect on them, other mobile operators, the greater public and the functioning of the economy, and will have irreversible consequences.

In its affidavit, Telkom says there will be no adverse consequences if the status quo is maintained until the high-demand spectrum is permanently licensed.

It adds that returning the spectrum will result in “digital load-shedding”; employees will be forced back to offices, exposing them to COVID-19; and the economic recovery agenda will be undermined.

Further, the telcos claim the emergency spectrum will be dormant until such time that ICASA finalises the permanent licensing of the spectrum.

Nonetheless, the communications department believes the court battle can be avoided through a negotiated deal, and it is now spearheading the discussion.

Communications and digital technologies minister Khumbudzo Ntshavheni, speaking through her spokesperson Tlali Tlali, tells ITWeb: “We will provide a full brief or update on this matter once we have finalised our engagements with the relevant parties.”

While the minister continues with her efforts to find common ground with the warring parties, others are of the opinion that the court bid is unwarranted and will further delay plans to auction spectrum.

Lucien Pierce, director at Phukubje Pierce Masithela Attorneys, says it is in the public interest that the litigation must fail.

Pierce says Telkom’s founding affidavit does not have any evidence supporting claims of digital load-shedding occurring if the emergency spectrum is taken away.

He also argues that Telkom’s claims of unfairness in the process ICASA followed to come to its decision to revoke the emergency spectrum, do not hold water.

“If Telkom is successful in interdicting the return of the emergency spectrum, there is a strong likelihood there will be many other consequences that result in the proposed spectrum auction being delayed further, possibly to 2023,” says Pierce.

“There is no evidence that digital load-shedding is likely to occur if the emergency spectrum is returned. Telkom has not demonstrated what irreparable harm, financial, reputational or otherwise, it will suffer, if the emergency spectrum is returned to ICASA.

“It is clearly in the public interest that the proposed spectrum auction occurs. This is because it will, after more than 10 years of attempting to distribute the high-demand spectrum, bring some stability and certainty to the ICT sector.

“It will also promote competition and result in lower data costs, because spectrum will be made available for the contemplated wholesale open-access network.”

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