Telcos gang up against ICASA in temporary spectrum fight

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Hardly a week after telecoms regulator the Independent Communications Authority of South Africa (ICASA) made its plans clear that it will oppose Telkom’s court application to halt the regulator’s move to take back temporary spectrum, Vodacom and MTN have also joined the fight.

Vodacom and MTN – SA’s two biggest mobile operators – have filed court papers to stop ICASA from taking the much-needed spectrum that the telcos received on a temporary basis after the outbreak of the COVID-19 pandemic.

In August, the regulator announced it had resolved the temporary radio frequency spectrum assigned to licensees will have to be returned to it by no later than 30 November.

The operators have largely used the temporary spectrum to launch 5G services and cater for the increased data demand as more people took to working and learning from home.

Telkom was the first operator to approach the courts to stop ICASA from withdrawing the temporary spectrum licences. It also wants the court to set aside the regulator’s decision not to extend these licences.

Last week, ICASA said in a statement that it had resolved to oppose Telkom’s litigation.

The regulator says the circumstances and considerations that informed the issuing of the radio frequency spectrum at the onset of the pandemic never contemplated that the spectrum would be licensed on a long-term or semi-permanent basis.

National State of Disaster remains

Byron Kennedy, Vodacom spokesperson says: “Vodacom can confirm that it has lodged a supporting affidavit in the High Court regarding Telkom's urgent interdict to prevent ICASA from withdrawing temporary spectrum at the end of November.”

He notes that the main thrust of the company’s argument is that while the National State of Disaster remains in force, the temporary spectrum cannot be withdrawn.

“It is estimated that circa 10 million South Africans have benefitted from the use of temporary spectrum given the significant change in customer behaviour patterns since the onset of the global pandemic,” Kennedy says.

Jacqui O’Sullivan, executive for corporate affairs at MTN South Africa, also confirmed to ITWeb that the company has also joined the fight over the temporary spectrum.

On Friday, the company also filed court papers in support of Telkom’s move to challenge ICASA.

“MTN can confirm that it filed papers in the Pretoria High Court on Friday, 15 October, opposing the decision by ICASA that requires the return of the temporary spectrum allocated to the industry by the authority in response to the COVID-19 pandemic,” says O’Sullivan.

She notes that MTN also launched papers in support of Telkom’s application against the regulator relating to the return of the temporary spectrum and the temporary spectrum pooling concessions that were granted by ICASA to the mobile operators.

According to O’Sullivan, since the start of the pandemic, the demand for data on MTN’s network alone has increased by 165% and that demand is not abating despite the much-decreased COVID-19 infection numbers.

She points out that the temporary frequencies assigned to operators and paid for has been critical in meeting the data traffic surge and without these frequencies, the networks will not have been able to provide reliable and resilient network quality under current COVID-19 protocols where many people continue to work from home.

“The withdrawal of the temporary spectrum will also pose a significant risk to lower income South Africans, students and learners who are benefiting from free access.

“Currently, more than five million people access the more than 1 000 websites that MTN has been able to zero-rate since the temporary spectrum was made available. This is more than double the number of sites agreed to by most operators and the bulk of the traffic on these sites is for educational content.

“The removal of the temporary spectrum will render MTN unable to offer students and learners this free access on the scale that it has done throughout the pandemic.”

She notes that MTN had hoped to resolve this matter outside of the courts but with the November deadline looming, “we believe it is imperative we act to protect the millions of South Africans that have become so dependent on fast and stable data services. If an opportunity still exists to resolve the matter out of court, MTN remains open and constructive to that option”.

Ongoing litigations

Just when it seemed like SA’s journey towards the release of high-demand spectrum was finally moving along, the process was stopped in its tracks by litigation instituted by Telkom, MTN and broadcaster Etv.

After failing to reach an out of court settlement with spectrum litigants, the North Gauteng High Court last month granted an order to review and set aside ICASA’s decision to publish the invitations to apply for both the high-demand spectrum and wholesale open access network.

On 1 October, the regulator revealed its truncated timetable and roadmap for the expedited licensing of the much-needed spectrum, setting a March 2022 deadline for the licensing of the International Mobile Telecommunications spectrum.

The telecoms industry has been waiting with bated breath for the release of spectrum since president Cyril Ramaphosa promised swift action in regards to allocation of high-demand radio spectrum during the 2018 State of the Nation Address.

South Africa’s allocation of spectrum has been up in the air for a number of years, with the last significant spectrum awarded 16 years ago. The last big set of spectrum issued was in the 2.1GHz band, which helped the operators in their 3G network deployment.

Unlike its African counterparts, SA is one of the few countries that have not allocated 4G/LTE spectrum on the continent. This has forced local operators to improvise with spectrum re-farming and carrier aggregation.

For the mobile operators, spectrum allocation will help provide faster and more widespread high-speed data services. It’s expected that the freed-up spectrum will reduce the cost of data and increase access to the internet.

Additionally, for government, a spectrum auction means a boost to the fiscus.

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