MTN joins Telkom case against Icasa

Mobile operator files legal challenge against regulator’s plan to cut off temporary spectrum

SA’s second-largest mobile operator, MTN, has added its voice to the growing chorus of telecoms operators rallying against the industry regulator’s plan to remove temporarily allocated radio waves in November, through a legal challenge filed on Friday.

MTN argues the plan would hit it and the public, who have benefited from congestion on the network being relieved by the temporary allocation.

In 2020, the Independent Communications Authority of SA (Icasa) assigned temporary additional radio frequency spectrum to the main mobile operators to cope with a surge in data traffic as the pandemic-induced lockdown cut off employees from workplaces, students from classrooms and public representatives from citizens.

But Icasa is set to terminate the licences at end-November, triggering discontent in the industry. Mobile operators, among other private sector voices, criticised the timing as nonsensical because SA is still in a state of disaster, and say the move would degrade telecoms services for customers.

Last week, Telkom filed a case to stop the temporary spectrum from being removed.

On Friday, MTN filed papers in support of Telkom’s case and lodged its own case challenging the Icasa decision.

“The termination of the temporary spectrum will have negative consequences for both MTN and the public at large,” the operator says in court papers, seen by Business Day. The company says the purpose of the counter-application is “to support the relief sought by Telkom and to seek additional relief”.

MTN says the first of the counter-applications “seeks to ensure the continued existence of the temporary spectrum licences awarded to MTN and other mobile operators” until such time as the second part “is finally determined or until the national state of disaster” ends.

The second part aims to set aside amendments to the ICT Covid-19 regulations made by Icasa in August that would give effect to terminating the temporary spectrum at the end of

November. As court cases can take a long time to be heard, MTN has asked for an urgent hearing of the matter before Icasa can implement its plan in six weeks. MTN’s filing comes just days after the regulator said it would oppose Telkom’s case. Icasa is likely to follow the same route with MTN.

The regulator believes that the circumstances and considerations that informed the issuing of spectrum at the onset of the pandemic did not take into account “that the spectrum would be licensed on a longterm or semi-permanent basis.

“The authority will therefore be derelict in its duty if it were, by default, to perpetuate what is now becoming an anticompetitive, unfair and unjust spectrum licensing regime, under the guise of pandemic relief.”

Icasa said the focus should be on a permanent licensing of spectrum. But an auction of spectrum has been delayed for many years.

While these cases could raise fears of more delays to the auction, experts — at least for now — doubt the legal challenges will have that effect, saying it is possible for Icasa to fight Telkom and MTN about the temporary spectrum without impeding the permanent auction.