The regulator said if the parties agreed to confine themselves to matters raised in the litigation during the new round of out-of-court negotiations, the spectrum auction could happen by early 2022.

By Mfuneko Toyana • 7 September 2021

Communications regulator Icasa has ditched its legal battle with telecoms giants including MTN and Telkom that would have further delayed the auction of high-speed spectrum slots and South Africa’s sorely needed transition to faster internet speeds — and a multibillion-rand fillip for the government.

MTN and Telkom, with free-to-air broadcaster eMedia Holdings (which owns e.tv and 24-hour news channel eNCA), had launched a legal challenge against Icasa’s proposed format for the auctioning of 700MHz, 800MHz, and 2,600MHz spectrum frequencies needed by data providers to launch new-generation internet technology like 5G.

The telecoms firms went to court between 2019 and 2020 to oppose the sale of the spectrum slots via invitations to apply (ITAs), which would have seen the two market leaders prevented from participating in some of the early rounds of the auction.

Icasa and the communications ministry argued that this was necessary to allow new and smaller players to gain a foothold in the data game, but the cellphone providers saw it as unfair discrimination, leading to the deadlock.

“Icasa has now decided to consent to an order setting aside its decision to publish the Invitations To Apply (ITAs) 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 [wireless open-access network],” the regulator said in a statement.

Read more at: https://www.dailymaverick.co.za/article/2021-09-07-icasa-will-ditch-spectrum-auction-litigation-if-cell-providers-agree-to-limit-challenges/

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11 June 2021

Pretoria – The Independent Communications Authority of South Africa (ICASA/the Authority) hereby wishes to advise the public and stakeholders that the ongoing settlement negotiations on spectrum litigation are unfolding, well and with a very encouraging outlook. All active litigants have since responded with their various positions on the matters, and there is an ongoing exchange of constructive engagements between the parties.

As part of the settlement discussions, the Authority is consolidating submissions with active litigants, and will outline a way forward in due course.

In March 2021, the Authority issued communication in respect of its position on mediation and the considerations related to possible settlement discussions with active litigants. The considerations were informed by, amongst others, counsel’s advice to embark on an expeditious settlement negotiation process that would result in a binding outcome capable of being made an Order of Court. The option and decision to enter into settlement negotiations has now proven to be effective as well as efficient, and afforded litigants the latitude to express themselves, thereby engaging thoroughly on the matters at hand.

The Chairperson of ICASA, Dr Keabetswe Modimoeng has expressed his confidence in the way parties have been able to engage with the Authority, and for showing interest, as well as optimism, in resolving the current challenges relating to the licensing of radio frequency spectrum for International Mobile Telecommunications (IMT).

Read more at https://www.icasa.org.za/news/2021/icasa-is-nearing-a-settlement-breakthrough-on-the-radio-frequency-spectrum-licensing-impasse

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Pretoria – The Independent Communications Authority of South Africa (ICASA/the Authority) has considered the detailed reasons for judgement in respect of the interdict granted to Telkom and e.tv, as it relates to the Invitation To Apply (“ITA”) for high-demand International Mobile Telecommunications (“IMT”) spectrum, as well as the ITA for the Wireless Open Access Network (“WOAN”).

The Council of the Authority reaffirms its view that it is of utmost importance that the spectrum be licensed, and that all avenues be pursued to avoid further delays in the process.

To this end, and having taken legal advice, the Council has resolved to pursue an expedited appeal against the decision of the Pretoria High Court, which may include directly petitioning the Constitutional Court. The Authority is mindful that the legal process may not be the only option to resolve the matter. As such, the Authority is also exploring entering into settlement discussions with active litigants in this matter whilst the legal processes are unfolding.

“We are of the view, and have been accordingly advised that there are good grounds for an appeal on this particular matter. Hence we are going ahead with such an appeal. We are, however, not entering into any mediation process but are open to explore settlement discussions with parties that deposed affidavits in Court,” says ICASA Chairperson, Dr Keabetswe Modimoeng.

The Authority has since halted all processes relating to the licensing of high demand spectrum and the WOAN pending the outcome of the court processes that will follow in this regard.

Ends

For all media enquiries, please contact:

Paseka Maleka
Tel : (012) 568 3455
Cell : 079 509 0702
E-mail: pmaleka@icasa.org.za

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Pretoria – The Independent Communications Authority of South Africa (ICASA/the Authority) notes the outcome of Telkom’s application to interdict ICASA from proceeding with the auction process in terms of the Invitation To Apply (“ITA”) for high demand spectrum or International Mobile Telecommunications (“IMT”) spectrum as well as the ITA for the Wireless Open Access Network (“WOAN”) both of which were issued on 2 October 2020.

The High Court has issued an order, without reasons, interdicting and restraining ICASA from proceeding with the auction process pending the final determination of Telkom’s application to review ICASA’s decision to publish the two ITAs. The effect of this order is that ICASA cannot at this stage proceed with the auction process and the timetable for that process will have to be revised.

In receiving the court order, the Chairperson of ICASA, Dr Keabetswe Modimoeng expressed his utmost confidence in the judiciary and though dismayed by the decision, remains resolute that the licensing process shall in due course be finalised.

“We have never been so close to licensing high demand spectrum. We were literally three (3) weeks away from auctioning this much-needed resource that would have seen South Africans benefit through this process in terms of reduced data costs and improvement in quality of service and experience. In commitment to our public interest mandate, the Council of ICASA has resolved to exhaust all legal avenues in respect of this process,” says Dr Modimoeng.

According to Dr Modimoeng, this is not the end of the road for ICASA but the very beginning. “We were here in 2016 when an interdict on a similar matter was issued, and that led the Authority to enter into an Out-of-Court settlement, withdrawal of the ITA and other forms of mediation. Such interventions took us nowhere. We are not going back there. It is our considered view that the best option is to exhaust all possible legal avenues at our disposal, including appeals so to ensure that this sensitive licensing process is not only defined by industry players but also by the public interest. We, however, await the reasons for the judgement.” commented Dr Modimoeng.

The Authority has also taken note of the fact that the primary litigant in this matter (Telkom); was also one of the three applicants in the 2016 litigation. Telkom’s opposition to this licensing process has therefore been consistent.

The delay in the licensing of high demand spectrum has huge implications in terms of competition in the mobile services market as well as reduction of cost to communicate particularly data costs for consumers and business. For as long as there is an interdict in place, South Africans will continue to bear the brunt for high data costs, ineffective competition and a deprived economy. But ICASA remains confident and forward-looking to ensure that South Africans ultimately benefit from this licensing process.

https://www.icasa.org.za/pages/icasa-notes-the-court-interdict-issued-in-respect-of-the-licensing-of-spectrum-pursues-an-appeal-process

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by Paula Gilbert, Editor, Connecting Africa 3/9/2021

South Africa’s long-awaited spectrum auction has once again hit a major speed bump after local operator Telkom won a court interdict to stop the auction process, which was supposed to take place at the end of this month.

The Independent Communications Authority of South Africa (ICASA) has effectively been forced to stop its plans to auction spectrum in the 700MHz, 800MHz, 2.6GHz and 3.5GHz bands, intended to be used for 4G and 5G rollout.

After years of delays, ICASA in October 2020 published an Invitation To Apply (ITA) for high-demand spectrum for both the planned Wireless Open Access Network (WOAN) and individual spectrum for operators.

“The High Court has issued an order, without reasons, interdicting and restraining ICASA from proceeding with the auction process pending the final determination of Telkom’s application to review ICASA’s decision to publish the two ITAs. The effect of this order is that ICASA cannot at this stage proceed with the auction process and the timetable for that process will have to be revised,” the regulator said in a statement.

Read more at http://www.connectingafrica.com/author.asp?section_id=761&doc_id=767928&&utm_s

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•ICASA CONTINUES TO RECEIVE SUBMISSIONS OF APPLICATIONS DESPITE TELKOM’S COURT APPLICATION

23 December 2020

Pretoria – The Independent Communications Authority of South Africa (“ICASA/the Authority”) received a court application on Tuesday, 22 December 2020, filed by Telkom in respect of the Invitation to Apply (“ITA”) for high demand spectrum or International Mobile Telecommunications (“IMT”) spectrum as well as the ITA for the Wireless Open Access Network (“WOAN”) both of which were issued on 2 October 2020.

The Authority is currently reviewing the court application and has engaged its legal representatives to oppose the court application. Furthermore, the Authority wishes to inform all prospective applicants that the date for submissions of applications in respect of the ITA for the IMT spectrum remains unchanged and is still 28 December 2020. This court application does not stop the Authority from proceeding with the receipt of applications in this regard. https://www.icasa.org.za/news/2020/icasa-continues-to-receive-submissions-of-applications-despite-telkoms-court-application

•My Broadband: “ICASA will mess up the industry for 20 years” — Telkom sues over 5G spectrum auction

article by Jan Vermeulen, 23 December 2020

Telkom has launched a legal challenge against ICASA’s plans to auction valuable radio frequency spectrum that is to be used for 4G and 5G networks in South Africa.

In an interview with MyBroadband, the Group Executive: Regulatory Affairs and Government Relations for Telkom, Siyabonga Mahlangu, said that Telkom has tried to engage with ICASA regarding the spectrum auction on several occasions, but the regulator rebuffed them.

Mahlangu warned that if the spectrum licensing process were to continue as is, ICASA would mess up the industry for 20 years.

Read more at:

https://mybroadband.co.za/news/cellular/380978-icasa-will-mess-up-the-industry-for-20-years-telkom-sues-over-5g-spectrum-auction.html

•TechCentral: Telkom sues Icasa over ‘flawed’ spectrum auction

by DUNCAN MCLEOD, December 22, 2020

Telkom has submitted papers in the high court in Pretoria seeking an injunction restraining the communications regulator Icasa from continuing, at present, with the scope licensing process.

Speaking to TechCentral on Tuesday, Telkom group executive for governance and government relations Siyabonga Mahlangu said the company was approaching court because it believed Icasa invitations to apply (ITAs) to the scope and planned open access network (Woan) had flaws basically that could strengthen Vodacom and MTN’s “rule”.

Telkom wants temporary relief against Icasa, preventing the regulator from handling, evaluating, or judging applications under ITAs, which must be released before December 28th. One of Telkom’s main arguments is that Icasa issued an ITA knowing that 700MHz and 800MHz bands are not available…

It then wants the high court to review and set aside Icasa’s decision to issue two ITAs.

One of Telkom’s main arguments is that Icasa released ITAs knowing that the 700MHz and 800MHz bands – so-called digital dividends used by analog television broadcasters – are still not available for use by communications operators. Despite this, Icasa is insisting on the licensing of these bands and will expect to be paid for them despite the inability of applicants to use them, Mahlangu said.

Read more at:

https://techcentral.co.za/telkom-sues-icasa-spectrum-auction/104021/

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Staff Writer 14 October 2020

Telkom approached the Competition Tribunal today to declare the suite of spectrum arrangements between Vodacom and Rain as a merger.

According to Telkom, this merger should have been notifiable in terms of the Competition Act.

Telkom contends that the merger is notifiable because the multiple agreements between Vodacom and Rain grant Vodacom use and control over the deployment of Rain’s spectrum.

This includes the planning, rollout, maintenance, and service of its Rain’s radio access network.

According to Telkom Group Executive for Regulatory Affairs and Government Relations Siyabonga Mahlangu, Vodacom’s ability to control Rain’s spectrum entrenches its position as a dominant player in a highly concentrated market.

“It is important that the effects of spectrum arrangements on competition are scrutinised,” said Mahlangu.

“Particularly, in light of the upcoming spectrum auction which will set the ground for the nature of competition in the mobile market for the foreseeable future,” he continues.

Read more at: https://mybroadband.co.za/news/telecoms/371451-telkom-lodges-complaint-against-vodacom-and-rains-partnership.html

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Telkom has lost a case against Vodacom in the Pretoria High Court over the latter’s use of Telkom’s ducts and sleeves to roll out its fibre network.

This outcome is great news for South African customers, who could see fewer obstacles impeding their preferred fibre network from installing infrastructure in their area.

In 2015, the Homeowners’ Associations of 15 private residential estates in the Western Cape invited Vodacom to install fibre in their complexes.

However, Telkom already had underground ducts in these estates that had been used for the rollout of telephone and ADSL lines.

Vodacom asked Telkom to allow it to install fibre in its ducts in the estate, but Telkom declined, claiming it was not obliged to share its infrastructure.

Vodacom installed fibre in these ducts anyway, leading to a conflict that reached the courtroom.

Read more at: https://mybroadband.co.za/news/fibre/364598-new-court-ruling-is-great-news-for-fibre-rollout-in-south-africa.html?utm_source=newsletter

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Source: https://www.itweb.co.za/contributors/nLPp6V7rzDL7DKQz

By Samuel Mungadze

Johannesburg, 26 June 2020

The Constitutional Court (ConCourt) delivered a blow to Telkom yesterday, dismissing the company’s bid to be allowed to install telecommunications stations – cellphone masts – at locations of its choice without prior approval from local authorities.

Telkom approached the ConCourt seeking the interpretation of Section 22 of the Electronic Communications Act. It wanted the court to pronounce whether the exercise of rights it held in terms of the section is subject to compliance with municipal bylaws before exercising those rights.

The court’s decision is likely to have a far-reaching impact on telcos that have previously faced criticism over cellphone masts. Concerns from some quarters ranged from the masts being a distraction, to alleged emission of electromagnetic radiation.

The long-running battle over the cellphone masts between Telkom and the City of Cape of Town dates back to 2016 when Telkom installed a cellphone mast in Heathfield, without prior approval from the city.

According to the City of Cape Town, the zoning of the land does not permit the installation of a cellphone mast, and when the city informed Telkom that it was in breach of the Municipal Planning Bylaw, the company approached the Western Cape High Court to challenge the validity of the law and Cape Town’s telecommunications mast infrastructure policy.

At the time, Telkom planned to install 135 masts across Cape Town and went ahead and installed seven masts without obtaining the city’s approval.

The city responded by imposing an administrative penalty on Telkom and put its application for rezoning on hold pending payment of the penalty. The telco then approached the courts.

Subsequently, Telkom lost the matter in the Western Cape High Court, as well as in Bloemfontein at the Supreme Court of Appeals, before heading to the ConCourt.

On Thursday, the ConCourt unanimously dismissed Telkom, saying its “interpretation” of the law lacks merit.

“The Constitutional Court further held that its jurisprudence on the interpretation and application of section 22 of the Act illustrates that licensees must comply with municipal bylaws when they exercise the right conferred on them by that provision. Therefore, it held that the Supreme Court of Appeal cannot be faulted for applying that interpretation of section 22,” reads the judgement.

It continues: “The Constitutional Court held that leave to appeal must be refused as it was not in the interest of justice to grant it. The effect of the refusal was that the order issued by the High Court remains extant and Telkom should pay costs, including the costs of two counsel.”

Read more at https://www.itweb.co.za/content/rxP3jqBmR2ZMA2ye

Concourt rules against Telkom in Heathfield cellphone mast case

By Chevon Booysen Jun 26, 2020

Source https://www.iol.co.za/capetimes/news/concourt-rules-against-telkom-in-heathfield-cellphone-mast-case-49975350

Cape Town – The City has won a case against telecommunications provider Telkom after the Constitutional Court found that erecting its cellphone mast in Heathfield, without the relevant approvals, was unlawful.

The Constitutional Court yesterday handed down judgment in an appeal by Telkom, who was found not to have complied with the Electronic Communications Act, after it contravened municipal by-laws and policies.

In 2015, the telecoms giant wanted to improve its infrastructure to supply better services in Cape Town and decided to build 135 cellphone masts and rooftop stations. It identified a property situated in the suburb of Heathfield that belonged to the estate of Birch Kalu.

However, under the by-laws of the City, the property was zoned as single residential zone 1, which did not allow the construction of cellular masts.

In January 2016, Telkom applied for the rezoning of a portion of the property to permit the construction of a mast.

Two weeks later, Telkom went ahead and built the mast even though it had not received the City’s approval for rezoning.

Read more at: https://www.iol.co.za/capetimes/news/concourt-rules-against-telkom-in-heathfield-cellphone-mast-case-49975350

Concourt ruling https://www.concourt.org.za/index.php/judgement/366-telkom-sa-soc-limited-v-city-of-cape-town-and-another-cct287-19

Full judgement https://collections.concourt.org.za/handle/20.500.12144/36638

EMFSA: background about the Heathfield mast

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Staff Writer 12 June 2020

The Independent Communications Authority of South Africa (ICASA) licensed temporary spectrum to Vodacom, MTN, Telkom, Rain, and Liquid Telecom in April.

The temporary spectrum is aimed at easing network congestion and help mobile operators to maintain the quality of their broadband services and lower the cost of access to consumers.

Five spectrum bands were made available for temporary assignment: 700MHz, 800MHz, 2,300MHz, 2,600MHz, and 3,500MHz.

This temporary free spectrum will be closed at the end of November and will be then be placed on auction in December 2020.

ICASA’s acting chairperson Keabetswe Modimoeng said ICASA will get “attractive offers” from bidding companies because they will have “experienced open spectrum” and will want to regain access.

Read more at: https://mybroadband.co.za/news/broadband/355821-temporary-spectrum-what-vodacom-mtn-telkom-and-rain-are-doing.html?source=newsletter

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