The Independent Communications Authority of South Africa (Icasa) and South Africa’s telecommunications operators have not reached an out-of-court settlement on the current spectrum impasse.

Icasa has decided to consent to an order setting aside its decision to publish the Invitations To Apply (ITAs) in order to avoid a long-drawn-out litigation.

“Icasa has, over the past four months, engaged extensively and intensively with the active litigants with the intention to reach a settlement agreement so that the licensing process can proceed without further delays. Despite the parties’ best efforts, however, a comprehensive settlement has not been achieved at this stage,” said Icasa chairperson Dr Keabetswe Modimoeng,

Icasa filed a consent order with the High Court, with arguments to be heard on September 15.

“All the litigants could accept the proposed consent order or file papers opposing Icasa’s proposed consent order.”

The licensing of high-demand spectrum and the Wireless Open Access Network (Woan) will now be reconsidered by the authority, taking into consideration the issues raised by the litigants, such as the completion of the broadcasting digital migration process and the assessment of competition in the information and communication technology sector.

One of the perceived impediments to the process of licensing high-demand spectrum and the Woan – the broadcasting digital migration process – has been removed after the Communications and Digital Technologies Minister committed to completing the process within five months from the date on which the order is made.

However, Modimoeng raised concerns over the introduction of “new issues” by the litigants during negotiations.

“We noted with grave concern that some parties at the negotiations have sought to introduce matters that were not related to the issues in dispute. We therefore urge all parties to confine themselves to the issues in dispute and the relief, which is sought in the papers filed of record, as venturing into other unrelated matters can only serve to derail the confirmation of the order to which Icasa consents,” says Modimoeng.

It is expected that the auction of high-demand spectrum can take place by the end of January 2022, as long as the parties confine themselves to the matters “currently on the table”.

Icasa is not in a position to abandon the auction model as a method of assigning high-demand radio frequency spectrum; however, it is willing to separate the auction of high-demand spectrum and the licensing of the Woan.

“In this regard, we urge litigants to allow the auction process to continue while free-to-air broadcasters and all other interested stakeholders can get another opportunity to consult on the construction of the Woan, and how it can best suit various interests.

“The current spectrum litigation impasse is nothing short of a lose-lose situation for all, as it serves to hamstring the growth of the sector and the full realisation of economic spinoffs and cost-benefits for consumers,” concluded Modimoeng.