Minister Cwele to take ICASA to court over spectrum auction

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The Minister of Telecommunications and Postal Services Siyabonga Cwele is planning to take ICASA to court over its decision to invite telecommunications firms to apply for the high demand radio frequency spectrum.

“After considering the Invitation to Apply and on the advice of senior counsel, the Minister intends taking legal action to review the actions of ICASA,” the ministry said in a statement on Monday.

The Minister’s decision follows two meetings held with the regulator on 15 and 19 July 2016 that failed to resolve the matter amicably.

The ministry added that ICASA was furthermore not prepared to subject itself to the intergovernmental cooperation governance procedures.

The position of Government is that it is the custodian of spectrum which is a national and public resource and whose utilisation must benefit all the people of South Africa. “There is presently no policy direction on spectrum that has been issued. The policy process is ongoing but as yet still incomplete,” said the ministry.

In taking its decision to go ahead and by publishing its notice, the ministry said ICASA has failed to adhere to the prescripts of the relevant policies, legislation and regulations, and in particular the provisions Electronic Communications. In addition a request to ICASA by Government in September 2015 to halt this process after they published the Information Memorandum for International Mobile Telecommunications was ignored.

The Minister is concerned that ICASA’s invitation to apply for the auctioning of the spectrum was issued without consultation and prior notification to Government as the policy maker. 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 is acting in good faith to ensure that interested parties who may wish to respond to ICASA’s ITA do not act precipitously by engaging in a process which may ultimately be found to be invalid and therefore suffer unintended consequences as a result thereof,” said the ministry.

On July 15, ICASA today officially invited telcos such as Vodacom, MTN, Cell C, Telkom, etc, to apply for 4G licenses to provide much-needed broadband services.

Applicants will be vying to apply for the radio frequency spectrum licenses within the designated range: the 2.6GHz band and the 800 MHz band and the 700MHz band for the purposes of providing national broadband wireless access services.

The base price for 4G license would be R3 billion for duration of 15 years.

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