Free-to-air broadcaster e.tv has filed an application to join Telkom’s lawsuit seeking an urgent interim interdict preventing communications regulator Icasa from proceeding with its planned broadband spectrum auction.

In court papers filed at the high court in Pretoria this week, eMedia, the parent company of e.tv, has filed an “intervention application” in support of the Telkom suit, warning that if Icasa goes ahead with licensing the “digital dividend” spectrum bands at 700MHz and 800MHz, it will be directly prejudiced.

E.tv makes use of the digital dividend bands that Icasa plans to auction to telecommunications operators by no later than 31 March 2021. It said if access to the bands is auctioned, there is a real risk that mobile networks will begin using the spectrum, causing interference to its terrestrial analogue broadcasts and harming its business.

Late December, Telkom filed papers at the high court seeking an interdict to stop Icasa from proceeding with the spectrum licensing process.

Telkom has asked for temporary relief against Icasa, preventing the regulator from processing, assessing, or adjudicating applications under two invitations to apply (ITAs) — one for spectrum and the other for a licence for a wholesale open-access network — which were due for submission by no later than 28 December. It then wants the high court to review and set aside Icasa’s decision to issue the two ITAs.

Mafadi Consortium also joined in saying that unless ICASA revert to the CSIR spectrum allocation to the WOAN, South Africa will have effectively abandoned its own ICT policy and it will be another case of lost opportunity to transform the industry and bring greater participation of ICT retail players especially black start-ups.

“Access to passive infrastructure at fair prices must be guaranteed for the WOAN. Spectrum allocation must take into account future growth of the WOAN therefore policy decisions must take a long-term 15 to 20 years’ time horizon into account,” said Mafadi Consortium.

Antonio Sergio Lee, eMedia Investments’ chief operating officer, said Icasa’s auction process for the digital dividend bands is “unlawful, unreasonable and irrational” by design and in application, and “cannot yield a rational or reasonable outcome”.

“There was no engagement with e.tv regarding Icasa’s decision to put up for auction the very spectrum upon which e.tv is dependent for its analogue broadcasting and which it has a right to utilise,” Lee said. Icasa, he added, should have consulted with e.tv before making the spectrum available in the auction. “Icasa’s failure to do so has resulted in a decision that is shot through with procedural irrationality.”

As a result, e.tv supports Telkom’s application for an interim interdict, Lee said. “Unless this court acts now to stop the auction from occurring, it will be too late to undo the harm which is caused to e.tv, Telkom, the public and to the rule of law on account of Icasa’s conduct. Once the spectrum has been sold, bidders will have bid at the relevant reserve prices, and expectations will have been set.”

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