MTN & Vodacom join Telkom in court battle for spectrum

South Africa mobile operators MTN and Vodacom have joined fellow operator Telkom SA in a court battle to keep temporary spectrum.

MTN confirmed with Connecting Africa that it had filed papers in the Pretoria High Court on October 15, opposing the decision by the Independent Communications Authority of South Africa (ICASA) that requires the return of the temporary spectrum next month.

Earlier this month Telkom filed an affidavit in the same high court requesting that ICASA be interdicted from forcing operators to return the temporary spectrum – originally allocated to the industry in response to the COVID-19 pandemic.

"MTN also launched papers in support of Telkom's application against the regulator, relating to the return of the temporary spectrum and the temporary spectrum pooling concessions that were granted by ICASA, to the mobile operators," MTN confirmed via email but said it was open to an out-of-court resolution on the matter.

A Vodacom spokesperson also confirmed that it has joined the legal proceedings and will be "supporting the relief sought by Telkom."

"It is our contention that ICASA cannot withdraw the temporary licenses without due consideration to the likely impact that this will have on the ability of the licensees to continue to support the country's efforts to manage the pandemic," Vodacom's spokesperson said.

Temporary measures

The temporary spectrum was allocated in April 2020 to help operators meet the spike in broadband services demand due to the COVID-19 pandemic. Its end-date has been extended a number of times but last month ICASA said operators need to start winding down their use and return the spectrum to the regulator by no later than November 30, 2021.

"MTN had hoped to resolve this matter outside of the courts but with the November deadline looming, we believe it is imperative we act to protect the millions of South Africans that have become so dependent on fast and stable data services. If an opportunity still exists to resolve the matter out of court, MTN remains open and constructive to that option," it said.

"It is estimated that circa 10 million South Africans have benefitted from the use of temporary spectrum given the significant change in customer behavior patterns since the onset of the global pandemic," Vodacom added.

MTN said that since the start of the pandemic, the demand for data on MTN's network alone has increased by 165% and that demand is not abating, despite the decreased COVID-19 infection numbers.

"The temporary frequencies assigned to operators and paid for has been critical in meeting the data traffic surge, and without these frequencies the networks will not have been able to provide reliable and resilient network quality, under current COVID-19 protocols where many people continue to work from home.

"The withdrawal of the temporary spectrum will also pose a significant risk to lower income South Africans, students and learners who are benefiting from free access," MTN said.

Need persists

Telkom's founding affidavit, seen by Connecting Africa, said that "the rationale and need for temporary spectrum persist" and the operator was looking to prevent the disruption in the provision of services that will happen if the spectrum is taken back.

South Africa's operators have used the temporary spectrum to improve 4G services and to launch 5G services.

Last Wednesday, ICASA confirmed it planned to oppose the Telkom litigation.

"ICASA believes that the circumstances and considerations that informed the issuing of the radio frequency spectrum at the onset of the pandemic never contemplated that the spectrum would be licensed on a long-term 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 anti-competitive, unfair, and unjust spectrum licensing regime, under the guise of pandemic relief," ICASA said.

After a number of bumps in the road ICASA is now planning on licensing permanent 4G and 5G spectrum by March 2022.

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