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  • ICASA consults lawyers on Telkom’s ‘selfish’ court interdict

ICASA consults lawyers on Telkom’s ‘selfish’ court interdict

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The Independent Communications Authority of South Africa (ICASA) says it is consulting with its lawyers to carefully study Telkom’s latest court action aimed to prevent the regulator from processing the Invitations to Apply (ITAs) for high-demand spectrum.

This week, Telkom confirmed it had filed an application asking the Gauteng High Court to review and set aside the ITAs for spectrum published by ICASA on 10 December 2021.

In a statement, the telco said the application includes an urgent interdict to prevent ICASA from processing any applications until the review is heard.

Telecoms regulator ICASA was set to auction the much-needed spectrum in March last year, but Telkom, together with other telcos, approached the courts to challenge the process.

Operators have waited more than 15 years for ICASA to release spectrum licences, which are anticipated to increase access to connectivity, lower data costs and add network capacity, as smartphone adoption continues to accelerate in SA.

In a statement, the telecoms regulator expresses concerns that Telkom’s “selfish interests” are highly regrettable, given the authority’s commitment to expediting the auction and to delivering much-needed high-demand spectrum to the people of SA in March 2022 or as soon as it is practicably possible.

“Telkom appears hell-bent on stalling the authority’s every effort to license the high-demand spectrum that the sector, country and our economy so badly needs.

“The public interest demands that the licensing of high-demand spectrum cannot be delayed any longer. Narrow and selfish commercial interests should give way to the overriding public good of cheaper data, universal access to efficient and reliable connectivity, and high-speed broadband transmission. All of this will in turn boost the post COVID-19 economic recovery, which the country desperately needs,” says ICASA in a statement.

In its complaint, Telkom said it has serious difficulties with ICASA’s decision to again include sub 1GHz spectrum in the intended auction. The telco argues that this band is currently the subject of a legal challenge brought by broadcaster Etv.

According to Telkom’s group executive for regulatory affairs and government relations, Dr Siyabonga Mahlangu, the timing of the ITA is ill-conceived as the auction process does not consider the timing and impact of the findings of the legal challenge.

“This is further compounded by the lack of clarity around the WOAN [wholesale open access network] as the ITA for the WOAN has not been published,” Mahlangu continues.

The outcome of the legal proceedings, set to be heard starting on 14 March, will have a material impact on the availability of spectrum in this band, he adds.

Telkom further notes that ICASA has indicated it wishes to reconsider the timing of the licensing of the WOAN.

It points out that this has serious consequences for the ITA that was published in December 2021. Potential bidders like Telkom are not able to take a holistic view of the availability and conditions of access for total available spectrum before making their submissions for the auction, the telco argues.

Telkom’s group executive for regulatory affairs and government relations, Dr Siyabonga Mahlangu
Telkom’s group executive for regulatory affairs and government relations, Dr Siyabonga Mahlangu

Telkom’s pre-emptive strike

According to ICASA, on 31 December 2021, Telkom addressed a letter to the authority, while Vodacom also addressed a letter to the authority on a confidential basis on 1 January.

Both letters raised varying concerns regarding the ITA process and requested the authority to consider them. Telkom requested the authority to respond by no later than 4 January, failing which it would approach the court on an urgent basis for relief.

The regulator then responded on 3 January – to both Telkom and Vodacom – in brief, indicating its intention to respond comprehensively by 7 January, and undertook to consider the various concerns raised.

“Notwithstanding the authority’s undertaking to respond comprehensively by 7 January 2022, on 4 January 2022 – the date on which Telkom had requested a response from the authority – Telkom launched what can only be seen as a pre-emptive strike by filing an urgent application with the High Court to stall the ITA process and the auction intended for March 2022,” according to ICASA.

In light of the voluminous court papers served on ICASA by Telkom, the regulator says it is no longer able to respond to the respective parties’ correspondence by 7 January. It is currently studying the court papers and consulting with its lawyers in order to take an informed and carefully considered decision before responding to Telkom and Vodacom’s correspondence.

Despite this, the ITA process published on 10 December 2021, with its timetable, remains intact, according to ICASA.

“The authority’s lawyers will deal with the litigation instituted by Telkom and advise on the way forward. The authority will henceforth refrain from debating in the interim the merits or demerits of the case in the media,” ICASA points out.

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