Icasa’s intention for Covid emergency spectrum to be returned is ultra vires
South Africans want cheaper data and better service. To deliver this, mobile network operators (MNOs) must have more spectrum – radio frequency waves. During the Covid-19 national disaster, the Independent Communications Authority SA (Icasa) made emergency spectrum temporarily available to the top six MNOs who in turn managed to keep the economy working. Now, it seems, Icasa wants it back. The impact on consumers and the operators will be significant.
In its written response to Icasa’s move to have temporary spectrum returned from MNOs before the end of the Covid-19 disaster, the FMF’s Rule of Law project contends that this would be ultra vires and invalid. This is based on a legal analysis of the Disaster Management Act (2002) and subsequent regulations.
Acting on Minister of Communications instructions, in March 2020 Icasa issued the MNOs with emergency spectrum to deal with the surge in demand for mobile services and ahead of the long-awaited spectrum auction. Originally planned for 31 March 2021, then delayed until 31 May, the auction is now indefinitely postponed due to two separate interdicts by Telkom with e-TV, and MTN. Subsequently Icasa issued a statement that it is reviewing the temporary licences, suggesting that they may be withdrawn before any auction, and requesting public comment.
The FMF takes the view that Icasa is already acting ultra vires in that it had no authority to set any fixed date for the validity of the spectrum allocation. Neither the Cooperative Governance Minister’s regulations nor the Communications Minister’s directions authorise Icasa to stipulate 30 November 2020, 31 March 2021 or 31 May 2021, or any other fixed date as a date on which spectrum must revert to Icasa whether three months after termination of the national state of disaster have or have not passed.
The Cooperative Governance Minister’s 18 March 2020 disaster-management regulations authorise Ministers to issue directions to take steps necessary to minimise the effects of the pandemic and such directions continue to apply unless amended or withdrawn by the minister responsible.
The Communications Minister’s directions require Icasa to enable temporary licensing of high-demand spectrum for the duration of the disaster.
This means that for as long as the disaster endures, Icasa is not authorised under the Disaster Management Act to revoke the allocation of the emergency spectrum. The temporary allocation of this emergency spectrum should remain in force for at least the duration of the disaster, and indeed for as long as necessary to address the effects of the disaster and enable the MNOs to benefit from their emergency investments.
A national state of disaster lapses after three months but the Cooperative Government Minister may extend it. The Minister extended the state of disaster to 15 July, August, September, October, November and December 2020, and January, February, March, April, and May 2021.
On 26 March, the Communications Minister issued directions to Icasa to relax spectrum regulations to enable the temporary licensing of unassigned high-demand spectrum for duration of the Covid-19 national disaster. On 6 April, Icasa announced regulations that high demand emergency spectrum would be assigned temporarily to licensees and revoked upon the expiry of three months of termination of the national state of disaster, but no spectrum licence would be valid “after 30 November 2020” meaning whichever is earlier, 30 November or three months after termination of the state of disaster.
However, in November 2020, Icasa amended its State of Disaster Regulations to extend the temporary-spectrum period of assignment to, whichever was earlier, 31 March 2021 or three months after termination of the state of disaster. In March 2021, Icasa resolved to extend the assignment period of the temporary spectrum for two more months and amended the Regulations to further extend the period of assignment of the temporary spectrum to 31 May 2021.
But neither the Cooperative Governance Minister’s regulations nor the Communications Minister’s directions authorise Icasa to stipulate 30 November 2020, 31 March 2021, 31 May 2021, or any other fixed date as a date on which spectrum must revert to Icasa whether three months after termination of the national state of disaster has or has not passed.
Icasa should not revoke the temporary licences for the good of consumers, the economy and the operators who have invested heavily in infrastructure to utilise the emergency spectrum. Icasa showed sound judgement in the allocation of the emergency spectrum along the lines which could be expected after the auction. It should not disrupt this process.
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