Legal View

SA can’t afford further spectrum delays, says industry body

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The South African Communications Forum (SACF) has urged telecoms regulator the Independent Communications Authority of SA (ICASA) to consult robustly, as it prepares for a new spectrum licensing process.

This, according to SACF, is most likely the “best” mitigation to prevent the next licensing process of the long-awaited high-demand spectrum being interrupted once more.

SACF, which is an industry association that represents a broad group of members in the ICT industry, says spectrum licensing will always be a high-stakes process due to its financial impact.

Additionally, it will always attract litigation when there is a threat of the interested parties’ rights being compromised, it states.

However, the country simply can’t wait any longer than it already has to access high-demand spectrum.

Says SACF: “South Africa and the sector absolutely cannot afford further delays in the licensing of this critical high-demand spectrum at a time when reliable telecommunications networks are critical to economic continuity and much-needed recovery.”

Last week, the North Gauteng High Court approved an order to set aside ICASA’s decision to publish the invitations to apply (ITA) for high-demand spectrum licences and for a licence to operate a wholesale open access network.

This, after ICASA earlier this month conceded defeat when parties failed to reach an out of court agreement in the ongoing spectrum impasse. As a result, the regulator decided to consent to the order to avoid long-drawn-out litigation.

ICASA, which planned to auction spectrumby 31 March 2021, was stopped in its tracks when MTN, Telkom and broadcaster Etv took it to court, challenging some aspects of the auctioning of the much-needed spectrum.

South Africa’s allocation of high-demand spectrum has been up in the air for more than a decade, with the last significant spectrum awarded to Vodacom and MTN in 2004 and 2005, respectively.

It is 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.

Flawed moves

With no definitive timeframe on when the licensing process will take place, the SACF describes ICASA’s decision to “terminate access” to temporary spectrum as flawed.

SACF once again urges ICASA to reconsider its decision to have operators return the temporary spectrum, saying this will harm consumers, the economy and economic recovery.

“South Africa is again in the invidious position of talking about the licensing of 4G spectrum when most other jurisdictions are licensing or have licensed 5G spectrum.

“We are deeply concerned by historic long delays between licensing processes. The last delay lasted three years and was the shortest. The ICT sector cannot afford to wait another three years or even one.

“The SACF members would like to see the restart of the licensing process as soon as is practicably possible, with consultations beginning within a month. We are of the view that the licensing process can begin almost immediately, as ICASA is acutely aware of the pain points raised by licensees through the litigation process.

“Much of this in our view can be amended in the ITA fairly quickly. We expect that the ITAs are likely to be substantively similar, which could shorten consultations.”

ICASA last month resolved that the temporary radio frequency spectrum assigned to licensees must be returned to it by no later than 30 November.

The regulator said the temporary radio frequency spectrum was first assigned by means of an expedited ITA during April 2020 on the initial declaration of the National State of Disaster, occasioned by the COVID-19 pandemic.

According to ICASA, it allowed operators to use the temporarily assigned spectrum for a period of 17 months, noting the next few months until 30 November as a sufficient winding down period.

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