Telkom Secures An Interdict Against Communications Regulator ICASA
Telkom Secures An Interdict Against Communications Regulator ICASA. Telkom and E.tv have secured an interdict against communications regulator ICASA, preventing the spectrum auction planned for later this month from taking place until the merits of their case can be heard by the high court. According to Tech Central, the order which was handed down by the high court in Pretoria by Judge Selby Baqwa, ICASA is interdicted from assessing or adjudicating any applications received under its invitation to apply to participate in the spectrum auction. The auction was scheduled to take place by no later than 31 March 2021. Telkom filed papers against ICASA at the high court in December because it believed the regulator’s invitations to apply for spectrum and the ‘Woan’ had fundamental flaws that could entrench the “dominance” of Vodacom and MTN.
According to an affidavit by Antonio Sergio Lee, eMedia Investments’ Chief Operating Officer, ICASA did not engage or consult with E.tv about its decision to auction the spectrum that their analogue broadcast depends on. He added that “ICASA’s failure to do so has resulted in a decision that is shot through with procedural irrationality. This decision by ICASA has led E.tv to rally behind Telkom’s application for an interim interdict. Unless this court acts now to stop the auction from occurring, it will be too late to undo the harm which is caused to E.tv, Telkom, the public and to the rule of law on account of ICASA’s conduct. Once the spectrum has been sold, bidders will have bid at the relevant reserve prices, and expectations will have been set.”
One of Telkom’s main arguments is that ICASA issued the ITAs knowing that the 700MHz and 800MHz bands – the so-called digital dividend bands used by analogue television broadcasters – are not yet available for use by telecommunications operators. Despite this, ICASA pushed ahead with the licensing of these bands and will expect payment for them despite the inability by successful applicants to use them, Telkom group executive for regulatory affairs and government relations Siyabonga Mahlangu said in an interview with Tech Central.
Telkom also challenged the ITAs on other grounds, including that ICASA “pre-empted the outcome of the mobile broadband services inquiry. On the contrary, the way the auction is designed will result in competition being stifled and the entrenchment of the duopoly structure of the market.” Mahlangu added.
