ICASA to fight court bid to hold onto temporary spectrum

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The Independent Communications Authority of SA (ICASA) is not taking the latest litigation levelled against it lying down, confirming the telecoms regulator plans to oppose it.

The latest court action is courtesy of mobile operator Telkom, which approached the courts to stop ICASA withdrawing temporary spectrum licences by 30 November. It also wants the court to set aside the regulator’s decision not to extend these licences.

ICASA said in a statement today it has 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.

As a result, it states: “The authority will, therefore, be derelict in its duty if it were, by default, to perpetuate what is now becoming an anti-competitive, unfair and unjust spectrum licensing regime, under the guise of pandemic relief.

“Public interest dictates that high-demand spectrum be licensed without delay through an open, competitive and permanent assignment process, in a manner that fulfils the public policy objectives in terms of the Electronic Communications Act, 2005.

“It is for this reason that the authority has set out an expedited timetable for the permanent licensing of this spectrum through an open, market-based approach, by no later than the end of March 2022.

“In ICASA’s view, it would be unfortunate if the authority’s efforts to license this spectrum were continually to be frustrated by recourse to the courts to allow the temporary, ad hoc COVID-19 spectrum arrangements to remain in place in perpetuity.”

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 decision was met with criticism from operators, big business and industry insiders, some of whom felt it was “premature”, considering the country is likely to still be under the National State of Disaster when the emergency spectrum has to be returned.

ICASA issued the spectrum on an emergency basis 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.

Never-ending saga

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.

Poor decision beneficiary

Meanwhile, Paul Colmer, exco member of industry body, the Wireless Access Providers Association (WAPA), says its members stand to gain when ICASA reclaims the spectrum.

“Think about it: when ICASA shuts down bandwidth that has helped MTN alone double its data volume since the start of lockdown, the network is going to be so heavily congested it will slow to a crawl.

“Customers will jump ship left, right and centre, but to where? Our members, the wireless internet service providers (WISPs), had to meet the connectivity needs of customers during lockdown, which about doubled since the start of lockdown, with the same networks they had before lockdown started.

Paul Colmer, exco member of the Wireless Access Providers Association.
Paul Colmer, exco member of the Wireless Access Providers Association.

“They never got a whole bunch of new spectrum from ICASA, even though we would have benefitted enormously from WiFi 6E spectrum allocations, which we’re currently negotiating for. Our members had to struggle through, like so many South Africans trying to figure out how to simply get the job done.”

According to Colmer, when ICASA sucks back the 5G spectrum it allocated to the mobile networks, effectively scuppering their quality of service and experience, WISPs will be the only way a lot of people are going to be able to keep working, studying and running their businesses effectively.

“Our members stand to benefit from what I feel is, frankly, poor decision-making at ICASA,” he says.

“Yet, even as we engage ICASA on a number of issues, including WiFi 6E, so that we can help owner-operated internet businesses improve the lives of ordinary South Africans in the communities where they live, wireless internet service providers will pick up the slack and keep the digital lights on.”

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