Another delay in broadband. Minister takes ICASA to court

July 26th, 2016, Published in Articles: EE Publishers, Articles: EngineerIT


The Independent Communications Authority of South Africa (ICASA) is in hot water with the Minister of Telecommunication and Postal Services over its recent publication of a government gazette inviting companies to make bids in broadband spectrum auctions.  The Minister of Telecommunications and Postal Services, Dr. Siyabonga Cwele, after considering the Invitation to Apply (ITA) and on the advice of senior counsel, intends taking legal action to review the actions of ICASA.

A statement issued by the Ministry last night (25 July 2016) said that the minister has studied the ITA issued by ICASA in Government Gazette No 438 on 15 July 2016 to auction the high demand radio frequency spectrum.  In taking its decision to go ahead and by publishing its notice, ICASA has failed to adhere to the prescripts of the relevant policies, legislation and regulations, and in particular the provisions of  Electronic Communications Act. 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’s decision to take legal action follows two meetings held with the regulator on 15 and 19 July 2016 that failed to resolve the matter amicably. 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 the utilisation of which 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.

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.

According to the statement, 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.

Where does this place ICASA? It is the Independent Communications Authority of South Africa but this latest action by the ministry gives a new meaning on  “independent”.  South Africa has been waiting for a broadband policy, announced by the Minister last year, to be published in the format of a white paper before the government’s financial year end in March 2016.  Any request for information of when the white paper will see the light of day is answered with the same statement “cabinet is considering it”. It seems to be going the same way as the digital migration project which is now two years overdue.

One fact that is not spoken about is that the auction of the 700/800 MHz spectrum cannot effectively go ahead until digital television transition takes place.

The reserve bank recently put South Africa’s growth at 0%. It is well documented that access to broadband will add significantly to a country’s GDP, but this is clearly being ignored.

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