JOHANNEBSURG – MTN SOUTH Africa yesterday launched a legal battle to have certain aspects of spectrum auction led by the Independent Communications Authority of South Africa (Icasa) declared unlawful and set aside.

In court papers filed at the North Gauteng High Court, MTN SA asked the court to set aside Icasa’s decisions to adopt and to implement an auction structure that involves the categorisation of operators as Tier-1 or Tier-2 operators and the use of an Opt-In Auction Round from which Tier-1 operators would be excluded.

Icasa has categorised MTN and Vodacom as Tier-1 wholesale national operators and Cell C and Telkom are regarded as a Tier-2, being the third and fourth national wholesale operators. MTN SA’s general manager for legal and regulatory affairs Moses Mashisane berated both Icasa’s operator categorisation and the Opt-In Scheme, described in the Invitation to Apply (ITA), saying they were “impermissibly vague”.

Mashisane said the operator categorisation was based on an arbitrary number of municipalities, and incorrectly relied on retail market share, and that the definitions had been imported from the incomplete Mobile Broadband Inquiry without proper consideration or consultation.

“The Opt-In Scheme is irrational and inconsistent with the objectives of the ITA and the Electronic Communications Act 36 of 2005. It creates an auction structure that prevents Tier-1 operators from bidding for the spectrum that is necessary to implement 5G technology,” said Mashisane.

The 3 500MHz band, the primary spectrum band, is crucial to support the roll out of 5G technology, said Mashisane, adding he feared the potential outcomes of the Opt-In Scheme were far-reaching.

“They are not only prejudicial to MTN, but will render the ITA auction economically inefficient to the detriment of the South African public,” said Mashisane. He said neither MTN, Vodacom nor Cell C currently held spectrum in the 3 500MHz range. To date, Icasa had assigned spectrum in the 3 500MHz frequency band to Telkom (28MHz) and Liquid (56MHz), and also 80MHz of spectrum in the 3 700MHz frequency band to Rain.

South Africa’s telecommunications industry has been waiting for the spectrum auction for more than a decade, and Icasa is finally expected to hold the auction at the end of March.

In December, Cell C, Rain Networks, Vodacom, Telkom, Liquid Telecoms, and MTN had submitted applications in response to Icasa’s ITA for the International Mobile Telecommunications spectrum issued in October.

The MTN SA legal action is the latest hurdle to hit the spectrum auction after partly state owned telecommunications company Telkom approached the court last year to have the process set aside. In December Telkom approached the court seeking an interdict to prevent Icasa from proceeding with the spectrum licencing process.

Meanwhile MTN said the group yesterday announced a $25 million (R380m) donation to support the African Union’s Covid-19 vaccination programme. MTN Group chief executive and president, Ralph Mupita, said the donation was expected to help secure up to 7 million doses of the Covid-19 vaccine for health workers.