The Independent Communications Authority is preparing to oppose MTN South Africa's litigation to have certain aspects of the upcoming high-demand spectrum auction declared unlawful and set aside. Photo: Leon Nicholas
The Independent Communications Authority is preparing to oppose MTN South Africa's litigation to have certain aspects of the upcoming high-demand spectrum auction declared unlawful and set aside. Photo: Leon Nicholas

Icasa readies legal defence against MTN

By Dineo Faku Time of article published Feb 1, 2021

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JOHANNESBURG - THE INDEPENDENT Communications Authority (Icasa) is preparing to oppose MTN South Africa's litigation to have certain aspects of the upcoming high-demand spectrum auction declared unlawful and set aside.

Icasa said on Friday that it was currently reviewing the application and had instructed its legal representatives to oppose the application, it also urged South Africans not to be alarmed by the latest litigation.

Icasa chairperson Keabetswe Modimoeng said the high-demand spectrum licensing process would continue as planned unless there was a court order issued to delay or halt the process.

“We will go to court and argue our case in defence and furtherance of Icasa's public interest mandate. We will do so because South Africans deserve to benefit from the imminent release of the radio frequency spectrum through reduced data costs, improved network quality and rural broadband coverage,” said Modimoeng.

In its founding affidavit filed last week MTN said it sought an order reviewing and setting aside Icasa's decision to implement an auction structure that involved the categorisation of operators as Tier-1 or Tier-2 operators and the Opt-In Scheme.

MTN argued that Icasa's Invitation To Apply for the high-demand spectrum had created a scheme that deliberately sterilised MTN and Vodacom, South Africa's two major cellular operations, from bidding during the Opt-In round for the spectrum that they needed to advance their 5G networks.

“Given 3 500MHz scarcity and the bias of the existing assignments towards Tier-2 operators, 5G spectrum should be awarded on a level playing field across the industry. The Opt-In scheme creates a playing field that is uneven,” said MTN in the founding affidavit.

But Modimoeng said Icasa had been in constant communication with MTN on the issues raised in its court bid and it was unfortunate that the operator had elected to proceed with instituting legal proceedings against the authority under these circumstances.

“This latest litigation attempt is characteristic of either impatience or a subtle desire to channel the authority's decision-making outlook. We, however, remain steadfast and will defend the process against these challenges,” Modimoeng said.

MTN is the second telecoms company to challenge the 5G spectrum auction after partially state-owned Telkom in December approached the court to have the process set aside.

Modimoeng said the licensing process citing was one of the most critical regulatory projects it had ever undertaken and it was backed by policy imperatives.

He also said the process was a winwin for government, business and consumers in the form of faster broadband speed, economic recovery, investment and, above all, better quality of service and experience.

“At this stage, industry players and all stakeholders need to reflect on the extent to which their commercial interests ought to override patriotic considerations.

“We believe that this licensing process has been balanced, with no room for a winner-takes-all attitude,” said Modimoeng.

He also said the fact that MTN and Telkom were uncomfortable for diametrically different reasons was indicative of a delicate balance that the authority had struck in its decisions.

“The process cannot be tailored for the narrow fulfilment of one or two specific mobile operators,” said Modimoeng.

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