The Independent Communications Authority of South Africa (ICASA) has announced it will oppose legal action taken by MTN over the high-demand spectrum auction set to take place at the end of March 2021.
MTN is taking ICASA to court over its definitions of Tier-1 and Tier-2 mobile operators, which form part of the spectrum auction structure.
“The Authority is currently reviewing the application and has instructed its legal representatives to oppose the application,” ICASA stated.
“The Authority would like to point out that it has been in constant communication with MTN on the issues raised in its court application,” it added.
ICASA said that it was “unfortunate” that MTN had elected to proceed with instituting legal proceedings against the Authority.
“This latest litigation attempt is characteristic of either impatience or a subtle desire to channel the Authority’s decision-making outlook,” said ICASA Chairperson Keabetswe Modimoeng.
ICASA botched Tier definitions
It is assumed the Tier-1 and Tier-2 categories created by ICASA were intended to separate mobile operators with and without significant market power.
ICASA had intended to allow Tier-2 operators, with less market power, to participate in an opt-in auction round that would not be open to Tier-1 operators.
However, an inspection of the definitions showed that both Tier-1 and Tier-2 operators would have to be parties with significant market power.
MTN has asked the Gauteng High Court to force ICASA to remove the Tier-1 and Tier-2 categorisation and the opt-in round from the auction process.
Court challenges indicate “balance” in decisions
MTN’s application follows Telkom’s own lawsuit in which it is challenging ICASA over the inclusion of spectrum in the 700MHz and 800MHz bands that are still being used by television broadcasters.
In ICASA’s latest response, Modimoeng stated that it was necessary for industry players and all stakeholders to reflect on the extent to which their commercial interests ought to override “patriotic considerations”.
“We believe that this licensing process has been balanced, with no room for a winner-takes-all attitude,” stated Modimoeng.
“Furthermore, the fact that the respective litigants are uncomfortable for diametrically different reasons is indicative of a delicate balance that the Authority has struck in its decisions.”
“The process cannot be tailored for the narrow fulfilment of one or two specific mobile operators,” Modimoeng said.
ICASA further urged South Africans not to be alarmed by the latest litigation.
“The process for licensing of high demand spectrum will continue as planned unless there is a court order issued to delay or halt the process,” ICASA stated.