Mediation not litigation needed to address spectrum concerns says ISPA

The more things change, the more they stay the same, or so the saying goes. Case in point, the year is 2021 and South Africa is still in the midst of spectrum constraints and there are still many roadblocks ahead.

While Icasa has delayed the spectrum auction to happen later this month, Telkom, eTV, MTN and Vodacom have all taken issue with Icasa’s Invitation to Apply and as such have approached the courts for relief on a variety of matters.

Telkom for instance, argues that the auction of spectrum in the 700 – 800MHz band is irrational as this spectrum will only become available once digital migration has been completed.

MTN argues that Icasa’s tiered approach and opt-in schemes for the auction will place limitations on so-called Tier 1 operators. Vodacom opposes this and has filed a counter-application.

“The spectrum auction is arguably the most important industry development in the past 15 years, and it does not serve the country to derail this critically required spectrum auction. For this reason, MTN is seeking relief with a very narrow focus, limited only to reviewing (with the objective of) removing the Tier 1 and 2 categorisation and the opt-in round, from the auction process,” reads MTN’s affidavit submitted earlier this year.

As for eTV, it supports Telkom’s submissions according to a report from MyBroadband.

As you can see, things are very messy at the moment and with all these balls in the air the Internet Service Providers’ Association (ISPA) is concerned that all this litigation is going to result in further delays as relates to getting more spectrum into the hands of ISPs.

The problem with yet more delays is that the digital divide is only getting wider.

“The current pandemic has demonstrated that remote access to high-speed data boosts real-world quality of life and underscores the gap between the connectivity-haves and connectivity-have-nots. If the assignment of high-demand spectrum had not been stalled for all these years, we could already have achieved the twin goals of protecting lives and generating revenue for the State which have now taken on added importance,” ISPA wrote in a mail to Hypertext.

It’s important to note that while the ongoing litigation presents a risk of delay, as ISPA rightly points out, lack of spectrum has been a problem for many years now. The difference now is that with the ongoing pandemic and lockdown, the digital divide is now a bright, clear line through South Africa and changing that should be a matter of urgency.

“ISPA understands that this is a critical commercial inflection point for the operators and that this is driving the litigation, but there is a point at which narrow commercial interests should give way to the greater good,” the organisation continued.

“ISPA therefore supports calls for mediation and other initiatives designed to bring these disputes to a swift conclusion”.

While this is all good and well to suggest, in our experience “the greater good” argument isn’t trumped by commercial interests.

What’s more is that MTN and Telkom’s concerns are valid and should be addressed.

Everybody, including network operators want spectrum so that it can be used effectively but we would argue that due process must be followed and every effort must be made to insure that the process is fair, transparent and open to all.

“The incumbent operators are on record as stating that limited access to scarce spectrum is the reason they cannot provide resale opportunities to ISPs,” writes ISPA.

“ISPs and South African businesses and consumers look forward to the day when that reason drops into oblivion thanks to the successful assignment of high demand spectrum in the first half of 2021,” the organisation concluded.

As do we and perhaps mediation can help allay fears of further delays. Unfortunately, as with everything related to spectrum over the last few years, we’re going to have to wait to see what happens.

[Image – CC 0 Pixabay]

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