Telkom, ICASA in another court battle over spectrum

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Siyabonga Mahlangu, Telkom group executive of regulatory affairs and government relations.
Siyabonga Mahlangu, Telkom group executive of regulatory affairs and government relations.

Telephony group Telkom has once again approached the courts to fight the actions of the telecoms regulator; this time, for the withdrawal of temporary spectrum.

Telkom is seeking a court order that prevents the Independent Communications Authority of South Africa (ICASA) withdrawing temporary spectrum licences from 30 November. It also wants the court to set aside the regulator’s decision not to extend these licences.

The latest court action by Telkom came about as result of ICASA’s announcement in August that it will not renew temporary radio frequency spectrum assigned to mobile operators in April 2020 in response to the COVID-19 pandemic.

ICASA issued the spectrum on an emergency basis under the National State of Disaster regulations to help mobile operators cope with high data demand as people worked from home and learners took online classes, to curb the spread of COVID-19.

After the release of the temporary spectrum, mobile operators used it to launch 5G networks in SA’s cities.

Now, Telkom has taken the legal route, asking the court to stop ICASA withdrawing the licences for temporary spectrum.

The telephony group says there is a well-grounded apprehension of irreparable harm should the interim relief sought not be granted.

In the court papers, Siyabonga Mahlangu, Telkom group executive for regulatory affairs and government relations, argues that ICASA cannot withdraw spectrum because the pandemic has brought about the “new normal”, which requires connectivity.

“The new normal is characterised by large numbers of people working and studying from home, and through the use of online services and the necessitated virtual social and work gatherings in lieu of the imposed limitation of physical public gatherings. People and businesses rely on online applications to trade and interact. This requires broadband connectivity,” he argues.

Mahlangu asserts that temporary radio frequency spectrum is a critical element in meeting the various capacity requirements of consumers, businesses, government, students and learners during the pandemic.

In his founding affidavit, Mahlangu says the average monthly data traffic on Telkom Mobile's network grew more than 70% year-on-year compared with pre-COVID-19, and withdrawing the temporary spectrum will have serious implications on the business.

“Data use on Telkom’s network increased 20% from March 2020 to April 2020 at the start of the national lockdown and this set a new data consumption baseline in the network. Data consumption peaked during the third wave. The huge increase in data demand impacted the user experience and overall network quality.

“The application of temporary spectrum has had a positive impact on Telkom's network, which was negatively impacted by the traffic patterns occasioned by the lockdown, which added further pressure on Telkom's network, both in respect of coverage and capacity.

“The removal of the temporary spectrum, while the COVID-19 National Sate of Disaster is still ongoing, would have a catastrophic impact on Telkom's network performance and therefore its customers who rely on the network for business, commercial, educational and service delivery purposes.”

Growing dissent

The push back on ICASA’s decision has been gathering momentum in recent weeks, as more entities are coming out lambasting the regulator over the spectrum withdrawal.

Telkom’s peers − MTN, Vodacom and Cell C − have also questioned the “premature” returning of the temporary spectrum.

The operators are concerned that if the telecoms regulator takes back the temporary spectrum prematurely, it may have a significant impact on data supply to South Africans.

The telcos want ICASA to again extend the temporary spectrum allocation, as the country is still battling the COVID-19 pandemic.

Just over two weeks ago, big businesses came out swinging at the regulator, saying ICASA was ‘running amok’ with spectrum.

Busi Mavuso, Business Leadership SA CEO, took exception to ICASA’s decision to withdraw the emergency spectrum, saying the move will have a severe impact on five million vulnerable South Africans who are currently benefiting from free internet-based services as a result of the temporary spectrum.

When the COVID-19 national disaster regulations were proclaimed, part of the agreement with operators was that certain internet-based services will be zero-rated, to allow the vulnerable to learn virtually, as well as receive information on COVID-19.

Mavuso said: “Five million people who are currently benefitting from these free services are actually not going to benefit anymore.”

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