Telkom litigates against spectrum licencing auction, again

24 November 2021 News

Telkom has once again cemented its odious status as the South African telecommunications sector’s most prolific serial litigator and thorn in ICASA’s side. The most recent broadside in the state-owned company’s recent volley of lawsuits came on 4 January in what ICASA described as an attempt to “yet again derail the much anticipated and urgently needed licencing process for the International Mobile Telecommunications spectrum earmarked for auctioning in March this year.”

Telkom’s latest complaint urged the High Court to interdict ICASA (the Authority) again from auctioning the IMT spectrum on 8 March 2022. ICASA in turn vented its obvious annoyance in the form of a lengthy press statement which reads as follows:

Telkom’s urgent application is supported by a 123-page affidavit, with a total of almost 700 pages of annexures, undoubtedly drafted over several days shortly after the publication of the Invitation To Apply (ITA) for the IMT licencing process on 10 December 2021.

The Authority is not surprised by Telkom’s relentless resort to litigation, the conduct stretching back seven years or more. Telkom appears hellbent on stalling the Authority’s every effort to licence the high-demand spectrum that the sector, country and our economy so badly needs.

The public interest demands that the licencing of high-demand spectrum cannot be delayed any longer. Narrow and selfish commercial interests should give way to the overriding public good of cheaper data, universal access to efficient and reliable connectivity and high-speed broadband transmission. All of this will in turn boost the post Covid-19 economic recovery which the country desperately needs.

On the afternoon of 31 December 2021, Telkom addressed a letter to the Authority. Vodacom also addressed a letter to the Authority on a confidential basis on 1 January 2022. Both letters raised varying concerns regarding the ITA process and requested the Authority to consider them. Telkom requested the Authority to respond by no later than Tuesday, 4 January 2022, failing which it would approach the court on an urgent basis for relief.

The Authority in fact responded on Monday, 3 January 2022 – the first working day of the year and indeed the first working day since receipt of those letters – to both Telkom and Vodacom. In brief, the Authority indicated its intention to respond comprehensively by Friday, 7 January 2022 and undertook to consider the various concerns raised.

Notwithstanding the Authority’s undertaking to respond comprehensively by the 7th of January 2022, on 4 January 2021 – the date on which Telkom had requested a response from the Authority – Telkom launched what can only be seen as a pre-emptive strike by filing an urgent application with the High Court to stall the ITA process and the auction intended for March 2022.

This is highly regrettable, given the Authority’s commitment to expediting the auction and to delivering much-needed high-demand spectrum to the people of South Africa in March 2022 or as soon as it is practicably possible.

In light of the voluminous court papers served on the Authority on 4 January 2022 by Telkom, ICASA is no longer able to respond to the respective parties’ correspondence by Friday, the 7th of January 2022. It is both necessary and reasonable for the Authority to study the court papers, consult with its lawyers and take an informed and carefully considered decision before responding to Telkom’s and Vodacom’s correspondence.

The Authority will, given the prevailing circumstances, respond to the correspondence in due course. In the meantime, the ITA process published on 10 December 2021 with its timetable remain intact.

The Authority’s lawyers will deal with the litigation instituted by Telkom and advise on the way forward. The Authority will henceforth refrain from debating in the interim the merits or demerits of the case in the media.

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