Regulator loses $850m spectrum tender battle

Jason McGee-Abe
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The Independent Communications Authority of South Africa (ICASA) has today been interdicted and prevented from going ahead with a planned high-speed broadband spectrum auction

Icasa logoA South African court upheld the government's decision to block a tender for 12bn rand ($850m) of high-speed mobile broadband licences issued by the telecoms regulator. It prompted Siyabonga Cwele, minister of postal and telecommunications services, to file a lawsuit against Icasa was usurping the government’s policy-making role, "without consultation and prior notification to government as the policy maker".

At the Gauteng High Court in Pretoria today, Judge Roland Sutherland said: “ICASA is interdicted from accepting bids in terms of the said invitation to apply and from taking any of the steps set out in the invitation to apply to advance the invitation to apply or any similar steps, pending an application by Cell C to launch review proceedings in respect the invitation to apply, provided the review application is served by October 14.”

It comes two months after ICASA surprised the industry when it opened tenders and invited applications for 700MHz, 800MHz and 2.6GHz spectrum licences. "A further concern is the haste with which ICASA is proceeding to dispose of the spectrum given that this spectrum will not be immediately available,” the minister had added.

Vodacom and MTN had initially welcomed the tender invitation but local player Cell C was concerned the regulator’s move to auction the much sought-after radio frequency spectrum may have come without “a clear policy directive from government”.

Reports last month said that South Africa’s incumbent operator Telkom was also considering suing the regulator. Local media have quoted Telkom spokeswoman Jacqui O’Sullivan saying that Telkom has "some fundamentally different views about the approach Icasa has adopted on the matter of spectrum".

She had added, according to Business Day: "We are currently considering the legal merits of ICASA’s approach and are exploring our own potential legal action with regard to the ICASA process."

ICASA will now wait for part B of the review application, but it’s currently unclear when this review process will take place. GTB