MTN and Telkom take on the South African regulator

MTN and Telkom take on the South African regulator

With the South African 5G spectrum auctions supposedly taking place in March, now may not be an ideal time for major operators to take the regulator to court – but that seems to be what is happening.

According to South African website Tech Central, MTN is bringing a case against regulator ICASA over access to the 3.5GHz radio frequency spectrum band.

It wants the process for awarding the 3.5GHz spectrum to be declared unlawful because it believes it may allow smaller operators will get all of the available frequencies at 3.5GHz.

The auction structure seems to be the issue here. It’s a two-tier system in which giants Vodacom and MTN are tier 1 operators, and Telkom, Liquid Telecom, Cell C and others are in tier 2.

There will be an opt-in auction round in which tier 1 operators will be barred from participating. MTN feels the definitions used by the regulator to differentiate tier 1 and tier 2 operators are “vague, arbitrary and unreasonable” and suggests that it will favour smaller operators at 3.5GHz in the opt-in phase.

Ironically one of those ‘smaller’ operators, Telkom, has also approached the high court. In December it sought urgent temporary relief to stop the auction, suggesting the invitations to apply (ITAs) for spectrum and a planned wholesale open-access network (WOAN) contained fundamental flaws that could entrench what it called the “dominance” of Vodacom and MTN.

One part of this complaint is that ICASA apparently issued the ITAs knowing that the 700MHz and 800MHz bands are not yet available for use by operators, which could involve a large financial commitment for bands that can’t be used.

Unlike Telkom, MTN doesn’t seem to want to stop the auction. However, the end of March date could look uncertain if the various players get bogged down in court-based disputes.

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