The regulator amended the rules after the process had begun, without prior notice or adequate consultations

Icasa’s approach to spectrum auction was unlawful, court says

At the heart of the dispute is a decision by Icasa to auction the 700MHz and 800MHz spectrum bands.
At the heart of the dispute is a decision by Icasa to auction the 700MHz and 800MHz spectrum bands.
Image: 123RF/TOMASZ WYSZOLMIRSKI

High court judge Selby Baqwa has said he has halted the radio frequency spectrum auction planned this month by the Independent Communications Authority of SA (Icasa) because he deemed the process unlawful and irrational.

Baqwa passed an order on Monday prohibiting Icasa from proceeding with the auction, pending a hearing on contentions raised by Telkom and e.tv.

The reasons for his decision were not contained in the order shared with journalists at the time.

At the heart of the dispute is a decision by Icasa to auction the 700MHz and 800MHz spectrum bands, currently used by television broadcasters, before the migration of broadcasting services to digital from analogue has been completed.

The migration will free up much-needed spectrum for mobile operators.

Icasa argued in court in February that mobile operators would be able to share the bands with broadcasters immediately after the auction.

But Baqwa said in his judgment that Icasa had contradicted itself because it said in December that the availability of those bands would be delayed and subject to the completion of the migration.

Ultimately, Icasa amended the rules after the process had begun, without prior notice to the affected parties or adequate consultations, which was unfair and irrational, Baqwa said.

“Icasa’s change of stance is tantamount, to use a colloquial phrase, to changing horses midstream ... and unlawful,” he said.

E.tv’s experts had argued in their affidavit that it “was factually impossible” to share spectrum with mobile operators as this would interfere with its broadcast signal and dilute its commercial exclusivity.

Baqwa also criticised Icasa for failing to conduct a competition assessment that would have contributed to formulating rules for assigning spectrum licences, which are needed to lower data costs, expand 4G capacity and roll out new 5G technology.

On Tuesday, Icasa said it would appeal the court order halting the auction.

Reuters

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