7 September 2021
Pretoria – The Independent Communications Authority of South Africa (ICASA/the Authority) has unfortunately not yet been able to reach an out of court settlement with the litigants in the High Court matter, in terms of which its decisions to invite applications for high-demand spectrum licences and for a licence to operate a Wireless Open Access Network (WOAN) are challenged.
ICASA has, over the past four months, engaged extensively and intensively with the active litigants with the intention to reach a settlement agreement so that the licensing process can proceed without further delays. Despite the parties’ best efforts, however, a comprehensive settlement has not been achieved at this stage.
ICASA has now decided to consent to an order setting aside its decision to publish the Invitations To Apply (ITAs) in order to avoid a long-drawn-out litigation, the effect of which would only be to delay further the licensing of high-demand spectrum and the WOAN. This means that the licensing of high-demand spectrum and the WOAN will now be reconsidered by the Authority, taking into consideration the issues raised by the litigants – such as the completion of the broadcasting digital migration process and the assessment of competition in the ICT Sector.
To this end, the Authority has filed its proposed consent order with the High Court; and all the litigants could accept the proposed consent order or file papers opposing ICASA’s proposed consent order. The matter is set down for the 15th of September 2021, at which any arguments against ICASA’s consent order will be heard.
The Minister of Communications and Digital Technologies has since committed to completing the broadcasting digital migration process and related processes within five months from the date on which the order (to which the Minister also consents) is made. This will remove one of the perceived impediments to the process of licensing high-demand spectrum and the WOAN.
The Chairperson of ICASA, Dr Keabetswe Modimoeng, expressed his concerns in respect of new issues that were raised by the litigants during negotiations. “We noted with grave concern that some parties at the negotiations have sought to introduce matters that were not related to the issues in dispute. We therefore urge all parties to confine themselves to the issues in dispute and the relief, which is sought in the papers filed of record, as venturing into other unrelated matters can only serve to derail the confirmation of the order to which ICASA consents,” says Dr Modimoeng.
Dr Modimoeng further says that – should parties confine themselves to the matters currently on the table, with an appreciation that spectrum needs to be licensed urgently, on a more permanent and transparent basis – the auction of high-demand spectrum can take place by the end of January 2022.
ICASA is not in a position to abandon the auction model as a method of assigning high-demand radio frequency spectrum. “According to the International Telecommunication Union (ITU), auctions are commonly recognised as the best way of assigning key mobile spectrum. The benefits of auctions are well known to regulators and the ICT industries globally. Among other benefits, auctions allow spectrum to be allocated to its highest value use and to the highest value set at a price that reflects opportunity costs. They are fair, open and transparent, and can be verified by third party accountants,” adds Dr Modimoeng.
Furthermore, and among other things, some of the key objectives of the Radio Frequency Spectrum Regulations of 2015 include establishing transparent, fair and efficient procedures and processes for radio frequency spectrum licence applications, as well as providing procedures and criteria for awarding radio frequency spectrum licences for competing applications or instances whereby there is insufficient spectrum available to accommodate the demand in terms of section 31(3) of the Electronic Communications Act.
Dr Modimoeng says the Authority is also willing to separate the auction of high-demand spectrum and the licensing of the WOAN. “In this regard, we urge litigants to allow the auction process to continue while free-to-air broadcasters and all other interested stakeholders can get another opportunity to consult on the construction of the WOAN, and how it can best suit various interests.”
The Chairperson confirms that the Authority is encouraged by the posture taken by the newly appointed Minister of Communications and Digital Technologies to actively participate in efforts to bring this litigation to an end by committing to completing the broadcasting digital migration process and the processes related to it so that all perceived impediments to the licensing process are removed.
“The current spectrum litigation impasse is nothing short of a lose-lose situation for all, i.e., consumers, industry players and the Authority, as it serves to hamstring the growth of the sector and the full realisation of economic spinoffs and cost-benefits for consumers,” concludes Dr Modimoeng.