The Independent Communications Authority of SA (Icasa) issued an emotional public appeal to Telkom to drop a court case challenging the recent auction of more than R14bn worth of spectrum, in an unusual move that casts doubt on the regulator’s defence and heaps political pressure on the partially state-owned company.
Icasa’s “humble” plea late on Tuesday came a day after the high court ordered the government to extend by three months the deadline to switch the country’s TV signals to digital from analogue. The switch will free up spectrum whose long range reduces the need to build towers and is crucial to providing internet coverage in rural areas.
The ruling bolsters Telkom’s case, which is set to be heard in the middle of April, against the auction process that took place in mid-March. One of the arguments of the partially state-owned operator against the process is that Icasa failed to heed an earlier court ruling that it is unlawful and irrational to include the so-called sub-1GHz spectrum in the auction, assign it and defer access to an unknown future date.
“As a result of these developments, we appeal to Telkom to consider withdrawing its litigation and to allow the upcoming consultation avenues on these regulatory interventions to conclude,” said Icasa chair Keabetswe Modimoeng.
“It is therefore a humble plea, and we believe that Telkom will join all of us in embracing the new winds of digital evolution in our country.”
Modimoeng’s comments, which are unusual for any entity confident in its legal defence, are likely to heap political pressure on Telkom. Its challenge to the process threatens to derail one of the biggest structural reforms as the more than a decade-long delay in releasing the new spectrum pushed up the costs of telecommunications and played a role in hobbling the economy.
Patriotism
Icasa’s main defence is that it has gone too far down the road in terms of licensing spectrum to go back. In its answering affidavit to Telkom’s court application, Icasa said: “So much water has flown [sic] under the bridge and reversal of the completed process will simply not be an option.” It has repeatedly appealed to Telkom’s sense of patriotism, saying the benefits of moving forward with the process for the country outweigh potential delays.
Telkom has long been opposed to the allocation of the government-controlled airwaves on the grounds that the process is in conflict with a clause in the country’s ICT pol-icy that aims to break the stranglehold of MTN and Vodacom on the mobile phone market.
On Monday, Telkom said it will press ahead with its court application to declare the process illegal. The company said it is doing this “to secure its ability to compete effectively in the mobile market” and “ensure that the licensing of spectrum promotes effective competition in the mobile market”.
All this comes as Icasa gets ready to hand over the allocated spectrum, for which Telkom has agreed to pay R2.1bn, from the start of July. The regulator is getting ready to switch SA over to fully digital broadcast services, freeing up certain airwaves that will be given to mobile operators. The migration had been expected to be completed in the 2021/2022 financial year under the guidance of communications & digital technologies minister Khumbudzo Ntshavheni, with the initial cut-off date set for March 31. However, a high court ruling on Monday shifted that to June 30.
Free-to-air broadcaster e.tv, together with Media Monitoring Africa and SOS Support Public Broadcasting, had lobbied for more time to complete the digital migration and to ensure that government-subsidised set-top boxes are deployed into more indigent households.
Part of the rationale for the extension is to align with the licensing start date of newly allocated radio frequency spectrum to mobile operators.
Some of the analogue radio waves held by TV broadcasters have already been sold to mobile operators. The validity period of the spectrum licences is set to start on July 1.
While e.tv and others have an extension, it is much shorter than they had wanted, working out more in favour of the minister, who gets to complete a programme that is more than five years behind schedule.
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