But the Independent Communications Authority of South Africa (Icasa) also said it might separate the controversial provision of spectrum to wholesale operators from an auction to allocate more spectrum to existing operators, including MTN, Telkom and Vodacom.
Icasa said it hopes the legal dispute with operators and broadcasters will be settled by next Wednesday, but even that is in doubt.
Keabetswe Modimoeng (pictured), chair of Icasa, objected that its legal opponents had “sought to introduce matters that were not related to the issues in dispute”.
He added: “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.”
At the heart of the legal dispute is Icasa’s wish to convert broadcasters to digital operation to free up spectrum for mobile operators, in what will be South Africa’s first spectrum auction for 15 years.
Added to this is Icasa’s proposal for a Wireless Open Access Network (WOAN), by which virtual network operators will be able to use spectrum on a wholesale basis. Existing operators have seen this as a threat to their business models.
The regulator said: “Icasa has now decided to consent to an order setting aside its decision to publish the invitations to apply in order to avoid a long-drawn-out litigation, the effect of which would only be to delay further the licensing of high-demand spectrum and the WOAN.”
It will now reconsider “the licensing of high-demand spectrum and the WOAN … 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.”
But it reaffirmed its belief in an auction as a way of allocating spectrum. Existing licences to use spectrum have long expired. Icasa awarded temporary spectrum licences to operators in April 2020, due to expire in March 2021, but had to extend them again.
South African President Cyril Ramaphosa protested in June 2021 that the legal case started by operators and broadcasters “threatens to delay the progress that we have all anticipated”.
In a significant development, Modimoeng said Icasa is now willing to separate the auction of high-demand spectrum and the licensing of the WOAN.
He said: “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.”
He called “the current spectrum litigation impasse … nothing short of a lose-lose situation for all”, saying it will “hamstring the growth of the sector and the full realisation of economic spinoffs and cost-benefits for consumers”.
