South African regulator’s approach to spectrum auction was unlawful, court says

PUBLISHED: Fri, 12 Mar 2021 13:29:33 GMT
Share

By Nqobile Dludla

JOHANNESBURG, March 12 (Reuters) – A South African judge said he had halted the radio frequency spectrum auction planned this month by regulator ICASA because he deemed the process unlawful and irrational.

High Court Judge Selby Baqwa passed an order on Monday prohibiting the Independent Communications Authority of South Africa (ICASA) from proceding with the auction, pending a hearing on contentions raised by telecoms operator Telkom and broadcaster e.tv.

The reasons for his decision were not contained in the order shared with journalists at the time.

At the heart of the dispute is a decision by ICASA to put up for auction the 700MHz and 800MHz spectrum bands, currently used by television broadcasters, before the migration of broadcasting services to digital from analogue has been completed.

The migration will free up much-needed spectrum for mobile operators.

ICASA argued in court last month that mobile operators would be able to share the bands with broadcasters immediately after the auction.

But Judge Baqwa said in his judgment, seen by Reuters on Friday, that ICASA had contradicted itself because it said in December that the availability of those bands would be delayed and subject to the completion of the migration.

Ultimately ICASA amended the rules after the process had begun, without prior notice to the affected parties or adequate consultations, which was unfair and irrational, Baqwa said.

“ICASA’s change of stance is tantamount, to use a colloquial phrase, to changing horses midstream … and unlawful,” he continued.

E.tv’s experts had argued in their affidavit that it “was factually impossible” to share spectrum with mobile operators as this would interfere with its broadcast signal and dilute its commercial exclusivity.

Baqwa also criticised ICASA for failing to conduct a competition assessment which would have contributed to formulating rules for assigning spectrum licences, which are needed to lower data costs, expand 4G capacity and roll out new 5G technology.

On Tuesday ICASA said it would appeal the court order halting the auction. (Reporting by Nqobile Dludla; Editing by Kirsten Donovan)

(c) Copyright Thomson Reuters 2021. Click For Restrictions – https://agency.reuters.com/en/copyright.html

Sign Up for Our Newsletter Daily Update
Get the best of CNBC Africa sent straight to your inbox with breaking business news, insights and updates from experts across the continent.
Get this delivered to your inbox, and more info about about our products and services. By signing up for newsletters, you are agreeing to our Terms of Use and Privacy Policy.