Icasa on MTN case: Spectrum auction 'can't be tailored for the narrow fulfilment' of some operators

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MTN's head office in Fairlands, Johannesburg.
MTN's head office in Fairlands, Johannesburg.
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Communications regulator Icasa says the legal battle mounted by MTN against the proposed spectrum allocation is an attempt to channel its decision making outlook, and vowed to oppose the application in court.

This week, MTN, which is the country's second biggest mobile communication network provider, launched an urgent high court application seeking an order declaring parts of the auction process which is overseen by the Independent Communications Authority of South Africa (Icasa) declared unlawful.

The company is opposed to Icasa's plan to allow smaller network operators to have a first pick of the spectrum being made available, in what is known as "opt-in lots". 

MTN and Vodacom are classified as Tier 1 companies, and are not allowed to participate in an initial "opt-in" round of the auction. MTN is of the view that the system may deprive it of an opportunity to optimally participate in the available bands.

"This latest litigation attempt is characteristic of either impatience or a subtle desire to channel the authority’s decision-making outlook," said Icasa chairperson, Keabetswe Modimoeng.

Modimoeng stated that Icasa would defend the legal challenge. 

"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."

The long-delayed auctioning of spectrum is expected to take place by end of March and it is not clear if the current legal battles would have any impact on the set deadline. Telkom has also mounted a multi-part challenge against the auction process

Icasa has, however, urged the public "not to be alarmed by the latest litigation" and that licensing of high demand spectrum will continue as planned unless there is a court order issued to delay or halt the process.

Modimoeng was adamant that "the process cannot be tailored for the narrow fulfilment of one or two specific mobile operators." 

The release of spectrum, which is expected to free up capacity for network providers to roll-out faster internet has been delayed by over a decade, including a 2018 litigation by former telecommunications minister Siyabonga Cwele against Icasa.

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