MTN SA has become the third company after Telkom and E-TV to take the industry regulator, Icasa, to court over the upcoming spectrum auction.
Vuyani Jarana’s Mafadi Consortium has also criticised the process being championed by ICASA saying that the problems with the planned spectrum allocation are so significant and warns that the process will produce “a still born that will be extremely costly to funders and which will damage the mobile market going forward”.
MTN is unhappy with the way Icasa intends making access to the crucial 3.5GHz radio frequency spectrum band available. It is aggrieved because it believes smaller operators, those other than MTN and Vodacom will get access to the band, which is key for delivering next-generation 5G broadband services.
The company filed papers in the high court in Pretoria on yesterday. In its application, MTN asks the court to declare Icasa’s process for awarding the 3.5GHz spectrum “unlawful”, wanting it reviewed, corrected or set aside.
Central to MTN’s complaint is Icasa’s decision to implement an auction structure that creates two tiers of mobile operator. Only Vodacom and MTN are defined as tier-1 operators, with Telkom, Liquid Telecom, Cell C and others in tier 2.
Icasa plans an opt-in auction round in which tier-1 operators will be barred from participating. MTN wants clarity on the tiering classifications and the opt-in round structure. It said it has no other option than to turn to the high court after exhausting communication channels with Icasa.
MTN is challenging the definitions used by the regulator to differentiate tier-1 and tier-2 operators, arguing in its court papers that the definitions used are vague, arbitrary and unreasonable. The company is worried that, as the spectrum auction plan currently stands, smaller operators will get all of the available frequencies at 3.5GHz in the opt-in phase, precluding MTN from deploying 5G in a band that is a cornerstone of early 5G deployments around the world and which is widely supported by original equipment manufacturers, including smartphone vendors.
Telkom already has access to the 3.5GHz band (28MHz of it) and a worry for MTN appears to be that the company could use the opt-in phase to gobble up valuable 5G spectrum to MTN’s detriment. The only other operator in the band is Liquid Telecom, which has access to 56MHz. Liquid is already building a wholesale 5G network, with Vodacom paying it for roaming 5G access for its clients.
MTN has made it clear that it does not want its court action to delay the spectrum auction, which is expected to take place in late March (assuming separate legal action by Telkom doesn’t derail the process).