THE INDEPENDENT Communications Authority of South Africa (Icasa) has decided to consent to an order setting aside its decision to publish the Invitations to Apply (ITAs) in order to avoid long drawn-out litigation, it said yesterday. The authority said a drawnout court case would further delay the licensing of high-demand spectrum.
The authority conceded that it had not been able to reach an out-of-court settlement with the litigants 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) were challenged.
“Icasa, over the past four months, has 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,” said the authority.
Icasa said it had decided to consent to an order setting aside its decision to publish the ITAs in order to avoid 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,” it said.
The authority said the matter was set down for September 15.
The telecommunications industry has been waiting for over a decade for the spectrum auction that will enable the expansion to 5G and cut the costs of data. The auction was scheduled for the end of March.
However, multiple court challenges by eMedia Holdings, Telkom and MTN have delayed the process. Icasa chairperson Keabetswe Modimoeng said the industry was no wiser due to the litigation process.
“The current spectrum litigation impasse is nothing short of a lose-lose situation for all, for example, consumers, industry players and the authority, as it serves to hamstring the growth of the sector and the full realisation of economic spin-offs and cost-benefits for consumers,” said Modimoeng.
He 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 on record, as venturing into other unrelated matters can only serve to derail the confirmation of the order to which Icasa consents,” said Modimoeng.
He also said that should parties confine themselves to the matters currently on the table, with an appreciation that spectrum needed to be licensed urgently, on a more permanent and transparent basis, the auction of high-demand spectrum could take place by the end of January 2022.
He said Icasa was not in a position to abandon the auction model as a method of assigning high-demand radio frequency spectrum.