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Local spectrum issue headed to High Court next week

Next week, South Africans may finally have some direction as regards spectrum availability. At least we hope we will.

On 15th September the matter related to the Independent Communications Authority of South Africa’s (ICASA) invitation to apply for high-demand spectrum and license to operate a Wireless Open Access Network will be heard in the high court.

As you may recall, earlier this year the process was stopped when Telkom, eTV, and MTN approached the courts to argue that, among other things, ICASA’s tiered approach and opt-in schemes for the spectrum auction weren’t fair.

Since then ICASA says it has engaged extensively with litigants in a bid to reach an out of court settlement but as of time of writing, has not been able to reach an agreement.

“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 ICASA chairperson, Dr Keabetswe Modimoeng.

As for whether ICASA is prepared to abandon the auction, the authority says it can’t, citing the key objectives of the Radio Frequency Spectrum Regulations of 2015.

“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,” Modimoeng added.

However, ICASA said that it would reconsider the prospect of licensing high-demand spectrum and the Wireless Open Access Network (WOAN) following concerns raised by litigants. The litigants may accept or deny ICASA’s proposed consent order at the High Court date next week.

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,” said Modimoeng.

ICASA 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.

We should have a clearer picture of what the future of local spectrum looks like after the 15th September then.

It’s also worth keeping in mind that temporary spectrum assigned for use during lockdown has to be returned to ICASA by the end of November.

We’re hopeful that this matter, which has been delayed for years, will finally start in earnest at the conclusion of this court hearing.

Of course there is a lot of time between now and January 2022 when more delays could pop up.

[Image – CC 0 Pixabay]

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