Spectrum negotiations with litigants unfolding well, says ICASA

The Independent Communications Authority of South Africa (ICASA) says the ongoing settlement negotiations on spectrum litigation are unfolding well and with a very encouraging outlook.
In a statement, the regulator says 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.

This after president Cyril Ramaphosa last week called for mediation in the legal impasse that has held back the country’s spectrum auction process.

ICASA was set to auction the long-awaited high-demand spectrum by 31 March 2021.

However, it was dealt a blow when MTN, Telkom and Etv took the regulator to court, challenging some aspects of the auction process.

Telkom filed its legal dispute for a number of reasons, including that the way the auction is structured will entrench the dominance of its rivals MTN and Vodacom.

Broadcaster Etv joined Telkom in its legal bid. Its argument is centred on ICASA’s plan to auction spectrum in the 700MHz and 800MHz frequency bands, where spectrum in these bands is still being used by TV broadcasters.

MTN also dragged ICASA to the North Gauteng High Court in January, challenging the way in which the regulator intends to license the 3.5GHz spectrum, which it said would result in Tier 1 operators being side-lined in the auction.

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

In March 2021, the authority notes that it issued communication in respect of its position on mediation and the considerations related to possible settlement discussions with active litigants.

It says the considerations were informed by, among 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.
“We note and welcome the comments made by the president of the republic on the current spectrum legal deadlock over the past week. We are, however, confident that, based on the discussions and concessions brought about by the parties, we should be in a good position to yield an amicable settlement agreement by no later than end of August 2021,” says Modimoeng.

The chairperson further stated that, as soon as a settlement is reached, ICASA will only need a few more weeks to set the spectrum auction process in motion, and to communicate the new closing date for the Wireless Open Access Network applications.

“The authority would like to finally advise that, even though its current preoccupation is to find a speedy resolution through the ongoing negotiations between litigants, the formalities in respect of the appeal process occasioned by the judgement of 8 March 2021 are still continuing in parallel as previously communicated. The outcome of the current settlement negotiations will, however, inform the future conduct of the appeal,” says the regulator. ITWeb