South Africa: Regulator's Spectrum Auction Approach Considered "Unlawful"
According to a report supplied to journalists by High Court Judge Selby Baqwa, Independent Communications Authority of SA (ICASA) unlawfully amended the rules for the radio frequency spectrum auction without the necessary consultations, making the entire process unlawful. The process was due to occur before the end of March 2021; however, an order from the High Court prohibited the auction from taking place, pending the dispute that Telkom and E-tv filed.
Fundamental to the auction dispute is a contradictory statement, highlighted by Judge Baqwa, which was made by ICASA back in December. Baqwa said ICASA advised that there would be a delay of the 700MHz and 800MHz spectrum bands currently being utilised by television broadcasters subject to the completion of the migration. ICASA later said mobile operators would share the bands with the broadcasters immediately after the auction.
"ICASA's change of opinion is equivalent, to use of the idiomatic phrase, to changing horses midstream ... and unlawful," he said. A document by Etv experts said sharing a spectrum with mobile operators would interfere with its broadcast signal and dilute its commercial exclusivity. ICASA failed to conduct a competition assessment which would have assisted in the rule formulation for assigning spectrum licences which are needed to lower costs, expand 4G capacity and roll out new 5G technology, said Baqwa.
ICASA's approach in amending the rules after the process begun, without any form of notice to the affected parties or even passable consultations, was highly irrational and unfair, said the Judge.