high-demand radio frequency spectrum

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[22 August 2024] Vodacom’s heads of argument in the “spectrum pooling” litigation, filed on 6 August 2024.

Vodacom – ICASA and others – heads of argument

As things stands the parties are still determining when the matter will be heard.

[21 July 2024] We have prepared an overview of the terms and conditions of the radio frequency spectrum licences issued to Liquid Intelligent Technologies (LIT), MTN, rain, Telkom and Vodacom pursuant to the March 2022 spectrum auction.

Ellipsis Overview of IMT Spectrum Licence Terms and Conditions July 2024

Below is a table summarising the deadlines extracted from the licence documents. There is ambiguity in the licence documents on when some obligations commence and/or expire: the below should not be relied upon absent confirmation from ICASA.

Date	Obligation / Milestone
1 July 2022	Effective date of all licences
1 July 2022	Must provide open access to MVNOs with minimum 51% HDG ownership held by persons from Historically Disadvantaged Groups
1 January 2023	Must submit MVNO business plan to ICASA
26 September 2022	MTN, Vodacom to finalise reference offer for site access
15/17 January 2024	Updated licenses issued
1 April 2024	Must reach minimum Level 4 contributor status under the ICT Sector Code
31 December 2024	Current deadline for the completion of broadcast digital migration
31 March 2025	Minimum of 50% of allocated public service institutions connected
31 March 2026	Minimum of 65% of allocated public service institutions connected
31 March 2027	Minimum of 80% of allocated public service institutions connected
15 January 2027	Must implement zero-rating of public benefit organisation mobile content
1 July 2027	Full utilisation of assigned spectrum required
31 March 2028	Minimum of 90% of allocated public service institutions connected
31 March 2029	100% of allocated public service institutions connected
31 December 2029	Compliance with uplink and throughput obligations
31 December 2029	Compliance with coverage obligations
15/17 January 2036	Expiry of obligation to connect public service institutions
1 July 2042	Expiry date of all licences

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[19 July 2024] Set out below are links to the latest versions of the radio frequency spectrum licences issued to succesful participants in the March 2022 spectrum auction.

VODACOM – Amended IMT RFS Licence – 15.01.2024

TELKOM – Amended IMT RFS Licence – 17.01.2024

MTN – Amended IMT RFS Licence – 15.01.2024

RAIN – Amended IMT RFS Licence – 15.01.2024

LIQUID TELECOMS – Amended IMT RFS Licence – 15.01.2024

Note:

• Cell C declined to make a final payment in respect of the 10 MHz lot in IMT3500 which they succesfully bid for. This spectrum will me made available in the next competitive spectrum assignment process.
• The amended versions have more detail on the obligations of licence-holders to connect public service institutions in support of SA Connect (including annexures not provided here).

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[19 July 2024] Vodacom has filed its replying affidavit in the “spectrum pooling” litigation.

Vodacom v ICASA and others – Vodacom’s replying affidavit

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[14 July 2024] In May 2024 Vodacom launched a high court application for an interdict preventing implementation of ongoing spectrum sharing / pooling agreements between other operators, which had been approved by ICASA prior to implementation. The application targets agreements entered into between MTN and Cell C and MTN and Liquid Intelligent Technologies (LIT) respectively.

Set out below are links to non-confidential versions of the Vodacom application as well as the responses received from ICASA, MTN, Cell C,  LIT and Telkom. The latter is not a party to any of the sharing agreements complained about, but has previously taken action to combat what it regards as unlawful spectrum sharing practises between other operators (including Vodacom).

Vodacom is seeking to have the matter heard on a semi-urgent basis with an initial hearing in August 2024.

Vodacom Notice of Motion & Founding Affidavit

ICASA Answering Affidavit

MTN Answering Affidavit

Cell C Answering Affidavit

Liquid Intelligent Technologies Answering Affidavit

Telkom Explanatory Affidavit

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[4 June 2024] Set out below are links to the original radio frequency spectrum (RFS) licences issued to Vodacom, MTN, Telkom, rain and Liquid Intelligent Technologies (LIT), dated 10 May 2022.

Note (1) that there are later, amended versions which will hopefully be available soon, and (2) Cell C has been unable or unwilling to pay the ZAR288m which it bid for 10 MHz of IMT3500 spectrum so the licence issued has been revoked. Presumably this spectrum will be included in the next process due to kick off after 1 April 2025.

Liquid Intelligent Technologies RFS Licence IMT 3500 10 May 2022

MTN RFS Licence IMT800 IMT2600 IMT3500 10 May 2022

rain RFS Licence IMT700 IMT2600 10 May 2022

Telkom RFS Licence IMT800 IMT3500 10 May 2022

Vodacom RFS Licence IMT700 IMT2600 IMT3500 10 May 2022

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[18 October 2023] ICASA presented in Parliament on 27 September 2023 on how the availability of the spectrum will transform and create competition in the telecommunication sector with respect to the reduction of costs to communicate.

ICASA presentation

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[15 September 2022] The closing date for comments on the information memorandum regarding the IMT bands that will be licensed during the second phase of the licensing process has been extended to 30 September 2022 (previously 19 September).

Information memorandum – Notice of extension

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[18 August 2022] ICASA has published an information memorandum seeking input on the IMT bands that will be licensed during the second phase of the IMT licensing process.

Submissions are due by 16h00 on 19 September 2022 and may be directed to Mr Kgosimolao Moshweunyane / imtlicensing@icasa.org.za.

Information Memorandum communicating the Authority’s intentions to initiate the second phase of the licensing process and to make available radio frequency spectrum to prospective licensees to provide mobile broadband wireless access services in the low and mid radio frequency bands

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[8 June 2022] ICASA presented on finalisation of the 2022 spectrum auction and future spectrum regulation in Parliament on 7 June 2022.

ICASA presentation on spectrum auction outcomes

The total price and lots won by each bidder is outlined in the table below:

The table below summarises what each bidder won across the entire auction:

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[28 March 2022] Telkom has indicated it is pressing ahead with legal action to declare the ITA leading to the now concluded auction unlawful (meaning we would start again). The matter is set down for argument in the High Court from 11-14 April 2022 and we have set out below links to heads of argument filed by active participants.

Telkom

Minister of Communications and Digital Technologies

ICASA

MTN

Rain

Vodacom

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[22 March 2022]

Spectrum Lots Acquired in Main Auction Stage and Associated Revenue

Total Spectrum Lots Acquired per Bidder and Associated Financial Commitment

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[8 March 2022] Results are in for the opt-in round:

[source: https://twitter.com/ICASA_org/status/1501205140438761473/photo/1]

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[6 March 2022] ICASA has gazetted a notice naming the six respondents to the invitation to apply (ITA) who have qualified to participate in the auction.

Applicants Qualified as Bidders on Licensing Process for International Mobile Telecommunications Spectrum for provision of the mobile broadband wireless access services for urban and rural areas

The auction will kick off with an opt-in round on 8 March 2022 followed by the auction proper on 10 March 2022. Telkom’s application for a review of the lawfulness of the ITA is scheduled to commence in the second week of April 2022.

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[7 January 2021]

Telkom have launched litigation seeking to interdict the licensing process pending a review of the lawfulness of the latest invitation to apply.

Telkom v ICASA and others 2022 Notice of Motion and Founding Affidavit 4 January 2022 (annexures available on request)

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[10 December 2021] ICASA has published a formal Invitation to Apply:

Notice to invite applications for the radio frequency spectrum licences for IMT Spectrum bands in the ranges of 703 – 790 MHz (“IMT700”), 790 – 862 MHz (“IMT800”), 2500 –2690MHz(“IMT2600”), and 3400 – 3600 MHz (“IMT3500”)

Reasons Document

Applications are due by no later than 16h00, 31 January 2022 and directed to Mr. Davis Kgosimolao Moshweunyane / imtlicensing@icasa.org.za.

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[6 December 2021] ICASA updated Parliament on its progress on 30 November 2021.

Presentation to the Parliamentary Portfolio Committee on Communications Update on the Spectrum Licensing Process as well as the Monitoring of the 2021 Municipal Elections

The Minister of Communications and Digital Technologies provided an update on the related process of broadcast digital migration (BDM) on 18 November 2021:

Progress update on the implementation of broadcasting digital migration to Portfolio Committee on Communications

[17 November 2021] ICASA has published the second Information Memorandum on Licensing of Spectrum in the IMT700, IMT800, IMT2600 and IMT3500 Bands for comment, following submissions received in respect of the IM of 1 October 2021.

Submissions are due by no later than 16h00, 30 November 2021 and directed to Mr. Davis Kgosimolao Moshweunyane / imtlicensing@icasa.org.za.

Notice regarding the Second Information Memorandum on Licensing of Spectrum in the IMT700, IMT800, IMT2600 and IMT3500 Bands

Second Information Memorandum: Reasons Document

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[8 November 2021] Please see below for submissions received in respect of the published Information Memorandum of 1 October 2021:

• Association for Progressive Communications
• Berkeley Research Group
• Community Investment Ventures Holdings
• Competition Commission
• MTN
• Paul AH Hjul
• RAIN Networks
• RBB Economics
• South African Communications Forum
• South African Radio Astronomy Observatory
• Telkom
• Vodacom

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[15 October 2021] Stepping away from auctions for a moment…Telkom has lodged an application to amend its spectrum licences in the bands 2300-2360 (“2300MHz”) and 2307-2387MHz paired with 2401-2481MHz (“2400MHz”). Telkom is seeking to

• Refarm a portion of the 2300MHz band
• Surrender the use of spectrum assigned to it in the 2400MHz band.

This would mean the surrender of 2 x 80MHz of FDD spectrum while the TDD assignment in 2300MHz would increase from 60Mhz to 87MHz (2300-2387MHz).

The application has been published for public comment. Submissions must be sent to Mr Joseph Dikgale (jdikgale@icasa.org.za) cc Johan Smit (smitjj@telkom.co.za) by 16h00 on Tuesday 16 November 2021.

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[1 October 2021] Media release: ICASA outlines plans for the expedited licensing of high-demand spectrum and the Wireless Open Access Network

Notice regarding Information Memorandum on Licensing of Spectrum in the IMT700, IMT800, IMT2600 and IMT3500 Bands

HDS Spectrum ITA Reasons Document Competition Assessment Annexure

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[10 April 2021] Rain has filed its replying affidavit to the MTN application:

Seventh Respondent Answering Affidavit

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[28 March 2021] ICASA has filed its notice of its application for leave to appeal the judgement of the High Court in favour of Telkom together with supporting documents:

ICASA Notice of Application for Leave to Appeal

ICASA Section 18(2) Application – Notice of Motion and Founding Affidavit

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[26 March 2021] ICASA has extended the temporary radio frequency spectrum assignments issued to licensees under the ICT COVID-19 National Disaster Regulations for a further two months (from 1 April 2021 to 31 May 2021).

ICASA extends temporary radio frequency spectrum assignments issued to licensees

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[16 March 2021] ICASA has released a media statement confirming its decision to appeal the judgement of 8 March 2021, further details of which can be found below:

ICASA reaffirms its position to appeal the judgement on the licensing of spectrum

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[13 March 2021] The Gauteng Division of the High Court has released its full judgment setting out the reasons for granting the interdict requested by Telkom.

Signed Judgment Telkom (eTV intervening) vs ICASA and others Case Number 66778/2020 (8 March 2021)

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[9 March 2021] The High Court has issued a judgement without reasons interdicting ICASA from continuing with the ITA processes for high demand spectrum and the WOAN respectively, as requested by Telkom.

Order in Part B of the Telkom Application

The parties are now trying to settle on dates for a review of the lawfulness of the spectrum ITA.

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[8 March 2021] Telkom Supplementary Affidavit 6 March 2021

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[2 March 2021] The completion of the Broadcasting Digital Migration (BDM) process has taken on a new urgency given the arguments raised by Telkom and eTV that ICASA cannot proceed to assign high-demand spectrum in the 700 and 800 MHz bands until BDM has been finalised.

The President committed to a new deadline of 31 March 2o22 in the 2021 State of the Nation Address and the Portfolio Committee on Communications has affirmed this deadline with the Minister and given notice of its intention to monitor its progress closely .

Communications Portfolio Committee Media Statement on Ministers Commitment to Complete Digital Migration Project by March 2022

The Minister of Communications and Digital Technologies provided an update to the Committee on its plans to meet the new deadline on 23 February 2021.

Presentation on BDM Progress Update to Portfolio Committee

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[24 February 2021] Redacted application forms submitted in response to the ITA are available from https://www.icasa.org.za/pages/imt-spectrum.

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[23 February 2021] It’s getting complicated. Vodacom has launched a counter-application to the application brought by MTN against ICASA.

Vodacom counter application 23 February 2021

Vodacom states its general agreement with the position taken by MTN, but sets out its own interpretation of how the operator categorisation and opt-in schemes in the ITA are intended to function.

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[22 February 2021] ICASA has provided an update on the timing of the next steps in the process.

ICASA provides an update on the auctioning of high demand spectrum (media release)

The announcement of qualified bidders will now take place on 23 March 2021 (was 22 February 2021), with the auction phase to commence by no later than 31 March 2021. ICASA also confirmed that it still looking to conclude a contract with an external and independent auctioneer who will be overseeing and managing the entire auction process.

This is, of course, subject to the High Court agreeing with Telkom and ordering the suspension of the process.

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[18 February 2021] ICASA have taken steps to preserve and harmonise existing available spectrum for 5G / IMT network in the low (sub 1 GHz), mid (1-6 GHz) and upper or millimetre wave (6 GHz and above) by imposing a moratorium on the consideration of new applications for spectrum in specified bands linked to outcomes of the World Radiocommunication Conference in 2019 (WRC-19).

Moratorium on spectrum applications in designated IMT bands

The moratorium came into effect on 17 February 2021 and will be lifted by notice in the government gazette at some unspecified time in the future.

The moratorium will apply to the following bands:

• 3 600 – 3 800 MHz
• 4 800 – 4990 MHz
• 24.25 – 27.5 GHz
• 37 – 43.5 GHz
• 45.5 – 47 GHz
• 47.2 – 48.2 GHz
• 66 – 71 GHz

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[10 February 2021] The application for an urgent interdict against ICASA proceeding with the high-demand spectrum auction brought by Telkom (eTV intervening) was heard on 9 and 10 February 2021. Judgement was reserved.

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[8 February 2021] Additional court documents available below:

Request for Records [3 February 2021]

Telkom’s Heads of Argument – Part B: Interim Application [5 February 2021]

e.tv Intervening Applicant’s Concise Heads of Argument: Interdict Application (Part B) [5 February 2021]

e.tv Intervening Applicant’s Practice Note: Interdict Application (Part B) [5 February 2021]

e.tv Intervening Applicant’s Heads of Argument: Interdict Application (Part B) [5 February 2021]

Sutherland Judgement [30 September 2016]

ICASA’s Heads of Argument [7 February 2021]

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[6 February 2021] eTV and Telkom have filed their replying affidavits:

Telkom’s Replying Affidavit

eTV Replying Affidavit

The hearing into whether Telkom (and eTV) should be granted the order they seek interdicting ICASA from proceeding with the ITA process is likely to take place in the week commencing 9 February 2021.

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[3 February 2021] Some interesting documents tucked away in the annexures:

Report to Minister on spectrum requirements for 5G in bands lower than 6 GHz and millimetre (mmW) bands which were under study at WRC-19 (this was required of ICASA by the ministerial policy direction on high-demand spectrum and was delivered to the Minister in April 2020)

Telkom temporary spectrum licence April 2020 (temporary licence issued to Telkom by ICASA under the Disaster Management Act for the use of IMT700, IMT800, IMT2600 and IMT3500 spectrum)

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[1 February 2021] ICASA has filed its answering affidavits to the applications lodged by Telkom and eTV:

ICASA Answering Affidavit Telkom app 20210201

ICASA Answering Affidavit eTV app 20210201

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[31 January 2021] MTN filed a separate High Court application on 31 January 2021 seeking an order for ICASA to remove certain provisions from the Invitation to Apply which MTN argue may unlawfully prevent it from bidding for 3,5 GHz spectrum.

MTN Notice of Motion and Founding Affidavit

ICASA to oppose the court application filed by MTN at the High Court (media release)

Note that this is a completely separate application to that launched by Telkom.

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[31 January 2021] The more the merrier….eTV have filed an application to intervene in support of Telkom.

eTV Notice of Motion and Founding Affidavit

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[28 December 2020] ICASA have confirmed that six responses were received to the Invitation to Apply for high-demand spectrum published on 2 October 2020.

ICASA receives applications in response to the Invitation To Apply for the International Mobile Telecommunications spectrum

Applications were received from:

• Vodacom
• MTN
• Telkom
• Liquid Telecoms
• Rain Networks
• Cell C

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[22 December 2020] Telkom has dropped a bombshell in the form of an urgent application to the High Court for an order preventing ICASA from considering applications received in response to its ITA for high-demand spectrum, pending the Court reviewing the lawfulness of the ITA.

TELKOM SA SOC vs ICASA 12 OTHERS (full document)

Telkom v ICASA Founding Affidavit

ICASA have confirmed that they will continue to receive applications up to the deadline of 28 December 2020, and that they will be opposing Telkom’s application.

ICASA confirms receipt of court application filed by Telkom

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[4 December 2020] A reasons document has been published setting out ICASA’s motivations for the structure and content of the high-demand spectrum ITA published on 2 October 2020.

HDS Spectrum ITA Reasons Document 4 December 2020

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[29 November 2020] ICASA has published responses to questions of clarity raised in respect of the ITAs for high-demand spectrum and licenses to operate the WOAN.

Responses to stakeholder enquiries in respect of the IMT and WOAN ITA

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[25 October 2020] ICASA has requested responses to an invitation to apply for appointment as consultants to execute and implement the ITA for the auction of radio frequency spectrum in the IMT700, IMT800, IMT2600 and IMT3500 bands.

ICASA-12-2020-tender-document

ICASA-12-2020-terms-of-reference

ICASA-12-2020-general-conditions-of-contract

The deadline for responses is 11h00 on 9 November 2020.

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[18 October 2020] The deadline for questions of clarity on the ITAs is 16h30 on 22 October 2020.

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[2 October 2020]

Invitation to apply for IMT700, IMT800, IMT2600 and IMT3500 spectrum (2 October 2020)

Composite invitation to apply for an individual electronic communications network service licence and radio frequency spectrum licence for the wireless open access network (WOAN) (2 October 2020)

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[30 September 2020] Address by the Chairperson on the announcement of invitations to apply for high demand spectrum and WOAN

ICASA will publish the Invitations to Apply (ITAs) for 406 MHz of IMT spectrum and the licensing of the wireless open access network (WOAN) provider on Friday, 2 October 2020, and aims to complete the spectrum licensing process by 31 March 2021.

The term of temporary assignments of spectrum assigned under the COVID-19 National Disaster Regulations will be extended until this process is complete.

High-demand spectrum

Bands: The ITA will cover spectrum in the 700 MHz, 800 MHz, 2.6 GHz and 3.5 GHz bands. Plans to include the 2.3 GHz band have been deferred pending completion of a required feasibility study.

Lots: The main difference with ICASA’s previous approach is the unbundling of spectrum lots – there are now 34 as opposed to 5. By doing it seeks “to encourage the market to dictate its course, in a way, promoting competition in the market”.

Impact on competition: ICASA did a pre- and post-auction competition assessment to ensure that the licensing process expands the market, introducing new concepts in:

• National wholesaler: A licensee that controls access to its Radio Access Network (RAN) and is capable of providing IMT services on a wholesale basis to roaming and Mobile Virtual Network Operator (MVNO) customers, where the licensee’s RAN is capable of serving more than 50% of the population in South Africa.
• Sub-national wholesalers: A licensee that controls access to its RAN and is capable of providing IMT services on a wholesale basis to roaming and MVNO customers, where the licensee’s RAN is capable of serving less than 50% of the population in South Africa.

The lots have been designed considering both these markets and the need to allow new entrants. ICASA indicates its awareness of the potential of this process to entrench competition concerns in mobile markets and will seek to addressing this through appropriate obligations and spectrum caps.

Spectrum caps: ICASA will impose spectrum caps as follows:

• Sub 1 GHz spectrum: maximum of 2×21 MHz (including existing sub 1-GHz spectrum holdings); and
• Overall: maximum of 184 MHz (including existing spectrum holdings).

Valuation and reserve prices: ICASA conducted an intensive spectrum fair valuation study using the avoided cost modelling and international benchmarking. It believes the reserve prices set provide a realistic starting point for price discovery through the auction process.

Social benefit and coverage obligations: ICASA will impose detailed coverage and quality of service obligations on successful participants, to be met within 5 years of date of grant of licence. For this purpose, it will distinguish between Batch 1, 2 and 3 municipalities (with Batch 3 having the poorest mobile service). It is also introducing an “outside-in” approach to coverage obligations, i.e. most coverage targets must be met for Batch 2 and 3 municipalities.

Obligations will be specific to categories of Lots and geared towards the existing coverage of the successful bidder.

Empowerment obligations: these are contained in both ITAs is to ensure to achievement of the sector’s transformation agenda through the two processes.

Next steps:

• 2 October 2020: publication of ITA
• 16 October 2020: deadline for questions of clarity on the ITA
• 28 December 2020: closing date for applications the closing date for the publication ITA for IMT Spectrum is 28 December 2020. The ITA will be published for 60 working days. The Authority shall not grant any extension in this regard. The Authority has provided 14 working days from 01 October 2020 for the enquiries to be received regarding ITA by Public and those will be responded to by the Authority. The clear timeline of how the licensing process is going to unfold is provided for in the ITA.

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[30 September 2020] ICASA will provide detailed plans for the ITA processes and provide clarification where necessary in a press conference taking place at the Ground Floor Auditorium, SABC Radio Park, which will also be streamed live on YouTube on Wednesday, 30 September 2020, starting at 16h00.

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[14 September 2020] ICASA has issued a media release noting that it has set a new deadline of 30 September 2020 for the publication of

• an Invitation to Apply (ITA) for high-demand spectrum (together with a reasons document); and
• an ITA to apply for the individual electronic communications network service licence to be issued to the operator of the wireless open access network (WOAN).

The high demand spectrum assignment process is to be completed by 31 March 2021 while the WOAN licensing process remains set to be finished by 31 December 2021.

ICASA has further called for interested persons to make representations “on the impact of the COVID-19 pandemic on the market and any specific factors emanating therefrom, which Council should take into account in finalizing the ITAs”.

The deadline for submissions is 16h00 on 16 September 2020 and these should be sent to Mr. Phil Molefe on pmolefe@icasa.org.za and Ms. Fikile Hlongwane on fhlongwane@icasa.org.za.

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[23 August 2020] Parliament hosted a round-table discussion on spectrum licensing & management in telecommunication & broadcasting sectors as well as its implications for 4IR on 19 August 2020. Presentations were made by the South African Communications Forum (SACF), the National Association of Broadcasters (NAB) and the Council for Scientific and Industrial Research (CSIR) .

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[3 July 2020] ICASA have issued a press release noting that they have failed to meet their own deadline of 30 June 2020 for the publication of ITAs for high-demand spectrum and the WOAN due to the complicated nature of these processes.

ICASA Media Statement

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[10 February 2020] Please see below for submissions received in respect of the published Information Memorandum:

• AABA (Pty) Ltd
• Alexis Diack Photography
• Altron Nexus Solutions
• Black Sub-contractors and Aspirant Independent Tower Operators (BAITO) Forum
• Bosch
• Bowline
• Broadband Infraco
• Cell C
• City of Cape Town (Information Systems & Technology Telecommunication Branch)
• Community and Individual Development Association for Entrepreneurship, Education and Employment
• Competition Commission
• Day Dreamer and ICT Project
• Department of Public Service and Administration
• Detecon Consulting (Telkom – Technical Assessment of the CSIR Spectrum Requirement Study)
• DG Murray Trust
• Dominion Business Investments
• EC Internet
• FCC Projects and Services
• FNB Connect
• Go Be
• Huawei Technologies
• Intel Corporation
• ISPA
• JuiceTel
• Liquid Telecom
• MIN Mobile
• Motorola Solutions
• MTN
• Mzanzi WOAN
• National Association of Broadcasters
• Qualcomm
• Rain
• Ramusi Group
• Reverence Telecoms
• Right 2 Know
• SABC
• Sentech
• Smile Communications
• SMME Chamber
• Sommer Engineering and Consulting
• South Africa Communications Forum
• South African Institute of Electrical Engineers
• South African Institute of Electrical Engineers (William Stucke – Presentation)
• South African Radio Astronomy Observatory
• Sun ‘n Shield Technologies
• Telkom
• Tuse Applications
• UniqueNet Resource
• VAC Digital
• Vodacom
• WAPA
• Zavuna Technologies
• Zenzeleni Networks

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[5 February 2020] Broadcasting digital migration (BDM) is directly relevant to the high-demand spectrum assignment process in that its completion will allow spectrum in the 700MHz and 800MHz bands to be freed up for assignment to telecommunications operators. Cabinet has declared that BDM must be accomplished in 2021 and the Department of Communications provided a detailed overview of the status quo and plans to achieve this in Parliament on 4 February 2020.

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Implementation of BDM Presentation 4 February 2020

Importantly, this includes the announcement of the recommended sequence for the release of freed up “digital dividend” spectrum before the end of February 2020.

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[3 February 2020] ICASA has released a media statement regarding submissions received in respect of the published Information Memorandum:

ICASA Media Statement

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[2 November 2019] ICASA has published its memorandum setting out its plans for the upcoming process to licence the WOAN and assign high demand spectrum to industry.

Information Memorandum on IMT Assignment Process (1 November 2019)

ICASA is ready to engage stakeholders on the process leading up to the licensing of high demand spectrum

The Information Memorandum is open for comment until 16h00 on 31 January 2020.

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[20 September 2019] A media release from ICASA reveals their intention to publish a memorandum on the process it will follow in implementing the Ministerial policy directions on the WOAN and the assignment of high demand spectrum by no later than 31 December 2019.

ICASA to issue an Information Memorandum on the licensing process for high demand spectrum

The information memorandum will set out a draft process, timelines and guidance to interested parties on how to participate and the criteria which will be used by ICASA to evaluate applications. Stakeholders will have an opportunity to make submissions on the document.

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[2 August 2019] ICASA has issued a tender for the “Appointment of a consultants to provide consultancy services to assist ICASA with the determination of fair economic value of the IMT700, IMT800, IMT2300, IMT2600, IMT3500, radio frequency spectrum and the drafting of the invitation to apply on an 80/20 PPPFA 2000, Preferential Procurement Regulation: 2017”.

ICASA-19-2019-b-TOR-IMT-Spectrum-Licensing-Spectrum-Valuation

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[26 July 2019] And here it is:

Policy Direction on High Demand Spectrum and Policy Direction on the Licensing of a wireless open access network (26 July 2019)

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[26 July 2019] Cabinet has approved the text of the long-awaited spectrum policy direction:

B. Cabinet decisions

1. Policy and Policy Direction for the Licensing of the High Demand Spectrum

1.1. Cabinet approved the Policy and Policy Direction for the Licensing of the High Demand Spectrum after extensive consultations with the sector and the public. The Policy and Policy Direction sets a framework for the transformation of the sector by enabling entrance of new players in this important market while at the same time encouraging investments and innovation. The Minister of Communications and Digital Technologies, Ms Stella Ndabeni-Abrahams, will in the next few days issue the Cabinet approved final policy and brief the media.

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[30 April 2019] We are informed that the Minister of Communications has decided not to issue a finalised policy direction on unassigned high-demand spectrum by the end of April as indicated, rather deeming it necessary to hold this over until Parliament reconvenes in late May 2019. There is no firm indication of a new deadline.
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[10 October 2018] ellipsis overview – draft policy directions on the WOAN and spectrum october 2018

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[8 October 2018] ICASA has formally withdrawn its “Invitation to apply for a radio frequency spectrum licence to provide mobile broadband wireless access services for urban and rural areas using the complimentary bands 700MHz, 800MHz and 2.6GHz” published on 15 July 2016, together with related notices.

This is the wake of the settlement of court action initiated by the Minister as a result of the publication of the ITA and plans to launch a new ITA process.

Notice of withdrawal of 2016 IMT ITA

ICASA Media Statement

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[28 September 2018] The DTPS has released the Draft Policy Direction for public comment. Interested persons are invited to comment on the proposed policy by 8 November 2018, addressed to: The Director General, Department of Telecommunications and Postal Services; For attention: Mr. T Ngobeni, The Deputy Director-General, Infrastructure Support at woan@dtps.gov.za.

Proposed Policy and Policy Directions to the Authority on Licensing of Unassigned High-Demand Spectrum

CSIR Report: Spectrum Requirements for WOAN

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[27 September 2018] The court matter between the Minister of Telecommunications and Postal Services and ICASA relating to the ITA for a Radio Frequency Spectrum licence to provide mobile broadband wireless access services for urban and rural areas in the complimentary bands, 700MHz, 800MHz and 2.6GHz, published by ICASA on 15 July 2016 has been settled.

In terms of the settlement agreement the Minister will be withdrawing the legal challenge and ICASA withdrawing the ITA. The Minister has commenced consultations with ICASA on a Draft Policy Direction for the licensing of high demand spectrum and intends issuing the Draft Policy Direction for public comment. Further details can be found in the joint statement found below:

MTPS / ICASA Joint Statement

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[19 September 2018] Presentations made in respect of the Draft Radio Frequency Spectrum Assignment Plan (RFSAP) for the IMT850 band can be found below:

• Cell C
• Comsol
• Huawei
• SABC
• South African Radio Astronomy Observatory
• Telkom

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[18 August 2018] ICASA has announced that it will hold public hearings into its Draft Radio Frequency Spectrum Assignment Plan (RFSAP) for the IMT850 band on 6 and 7 September 2018 at its Head Office.

Radio frequency spectrum assignment plan for frequency band 825 to 830 MHz and 870 to 875 MHz – Draft – Public hearings

5 September 2018 – ICASA Media Release

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[2 September 2017] ICASA has published for comment a Second Draft Radio Frequency Spectrum Assignment Plan: Rules for Services operating in the Frequency Band from 825 to 830 MHz and 870 to 875 MHz (IMT850).

ICASA Draft Radio Frequency Spectrum Assignment Plan 800 MHz 1 September 2017

The deadline for submissions on the Draft Radio Frequency Spectrum Assignment Plan (RFSAP) is 16h00 on 20 October 2017. Submission should be sent to Mr Manyaapelo Richard Makgotlho (rmakgotlho@icasa.org.za).

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[12 February 2017] ICASA has acknowledged the obvious and published a terse notice “deferring until further notice” the process for assignment of spectrum in the 700 MHz, 800 MHz and 2.6 GHz bands it launched on 17 July 2016.

Radio frequency spectrum licence to provide mobile broadband wireless access services using complimentary bands 700MHz, 800MHz and 2.6GHz: Timeframe for award process deferred

There will be no further notice: it would have been more accurate to withdraw it….

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[15 October 2016] Set out below is a summary of some of the more important aspects of the judgement of the High Court in the matter between the Minister of Telecommunications and Postal Services and ICASA.

Both the Minister and Cell C had applied to the Gauteng Division of the High Court seeking an interim interdict against ICASA proceeding pending a review of ICASA’s decision to proceed with the ITA. They were supported in their applications by Telkom.

In essence the Minister and Cell C attacked ICASA’s decision on the bases that:

• ICASA may not lawfully issue the ITA until has considered the spectrum policy then before Cabinet
• The ITA contradicts the 2013 Radio Frequency Spectrum Policy
• The ITA does not meet the statutory obligation on ICASA to promote competition (and it was alleged that the ITA was in fact anti-competitive), and
• ICASA’s conduct was irrational on a number of grounds.

ICASA sought to defend its actions by raising defences that:

• ICASA is independent and the Minister cannot demand deference to a draft policy
• The delays to the finalisation of the spectrum policy can no longer be tolerated
• The ITA is consistent with the National Radio Frequency Plan
• Certain valid criticisms against the ITA had been remedied by subsequent amendments to the ITA (these related to HDI ownership required to participate and dates for meeting roll-out targets, amongst others)
• ICASA acted rationally in issuing the ITA
• There would not be irreparable harm to any party were the ITA to proceed

Interestingly the judge situated the dispute within a Constitutional context:

“The radio frequency spectrum, like water and electricity is a crucial dimension of social life. Access to the utility of the frequency spectrum implicates the optimal achievement of several constitutional values and rights, including the freedom of trade, modern education and the dissemination of information pursuant to freedom of expression. Achieving effective access to its utility implicates equality too because of its role in facilitating these several rights. The regulatory regimes owes…., in part, its lineage to the Constitution. Accordingly, radio frequency spectrum is a highly regulated affair because of its scarcity and critical role in the communications industry and the importance, in turn, of the industry to modern economic and social activity.”

The judge separated out three issues for resolution:

• Alleged pre-emption of the Minister’s new national policy
• Alleged non-compliance with the National Radio Frequency Spectrum Plan
• The risk of anti-competitive attributes contaminating the ITA.

He also noted that there was criticism raised that the ITA “consists in part of technological demands of industry actors that are irrational”

Can ICASA lawfully issue the ITA before applying its mind to the Minister’s “imminent policy”?

The Court examined the legislative framework relating to the independence of ICASA and management of spectrum, finding that “it is plain that the decision that ICASA may make are, in certain important respects, circumscribed, as to process, although its substantive decisions are not subordinated to any other statutory authority”.

After examining examples of the relationship between the Minister and ICASA provided for in the Electronic Communications Act, the judge concluded that ICASA did have a duty to co-operate with the Minister, but that this was confined to existing policies and the law. Given that there was a duty on ICASA to act in assigning the spectrum, the Court saw no reason for it to “trump ICASA’s choice not to wait indefinitely” for the new policy to be finalised.

There is an important assertion of ICASA’s independence:

“In addition to the several considerations already mentioned is the further fact of ICASA’s status as a chapter 9 institution. The appropriateness of such bodies being able to enjoy the power to choose to defy the executive government in defence of their independence is no small matter, and warrants endorsement as a necessary condition of diffused power the democratic order founded on our Constitution. Such bodies are entitled not to be second-guessed by a court on the wisdom of any such defiance, provided they stick to the limits of their statutory powers.”

Is the National Radio Frequency Plan 2013 violated by the ITA?

The judge highlighted that part of what ICASA was proposing was to assign spectrum to participants in the ITA which spectrum was currently assigned to someone else, and found that this was of questionable validity. Furthermore, it was found that ICASA decision to assign spectrum now and defer access to it until an unknown future date dependant on a number of other happenings “has the look of a reckless decision and for that reason an irrational decision”.

This finding established the existence of a prima facie right which had been infringed.

Has ICASA complied with its obligation to promote competition?

The Court ruled that there was no convincing evidence that ICASA had not considered the competitive impact of the ITA prior to releasing it and further that disagreement with the substantive approach taken by ICASA was of itself not enough to establish that ICASA had breached a positive duty under law to take into account competition matters.

Irreparable harm and balance of convenience

The judge found that – even though the infringement of a right established through the violation of the National Radio Frequency Plan by the ITA was not a substantial infringement – there were exceptional circumstances in that industry actors were compelled to participate in the ITA while knowing that a review process could in future find the ITA unlawful and set it aside.

No irreparable harm to ICASA or participants would flow from granting the interdict and the balance of convenience favoured stopping the process now rather than letting it continue while the review was undertaken.

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[1 October 2016] Deja vu. ICASA’s Invitation to Apply process is unlikely to continue given the interdict granted in favour of the Minister of Telecommunications and Postal Services prohibiting ICASA from continuing with the process until a review process has been completed.

Judgement Minister of Telecommunications and Postal Services v ICASA re spectrum ITA

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[16 September 2016] ICASA has announced an extension for the submission of bids to 4 November 2016 (effectively 30 days from the previous deadline of 3 October 2016). All timelines applicable to the ITA will be pushed back by the same period.

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[5 September 2016] ICASA has published its responses to the various queries raised by stakeholders with regard to the Invitation to Apply (ITA) published on 15 July 2016.

ICASA response to queries on ITA

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[12 August 2016] Below is a link to the founding papers filed by the Minister of Telecommunications and Postal Services on 8 August 2016 on a semi-urgent basis for an order:

• Interdicting and preventing ICASA from implementing the licensing steps and process referred to or contemplated in the Invitation to Apply (“ITA”) published in the Government Gazette of 15 July 2016, pending the review of ICASA’s decision to launch the ITA.
• Declaring that ICASA’s decision as communicated to the Minister on or about 15 July 2016 to initiate a licensing process to invite, consider and/or issue frequency spectrum licences set out in the ITA is unlawful, invalid and of no force and effect and, to the extent required, declaring the publication of the ITA to be invalid, unlawful and of no force and effect.

MTPS v ICASA Founding Affidavit August 2016

Annexures to Affidavit

The Annexures include some items of interest, such as the Memorandum entered into between the Department of Telecommunications and Postal Services and the Department of Communications to regulate their cooperation in the aftermath of the Presidential decision to split the old Department of Communications as well as items of correspondence between ICASA the Minister of Telecommunications and Postal Services.

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[17 July 2016] ICASA have published an Invitation To Apply (ITA) for a Radio Frequency Spectrum licence to provide mobile broadband wireless access services for urban and rural areas in the complimentary bands, 700MHz, 800MHz and 2.6GHz. The focus in assigning these bands is to further the aims of the National Development Plan and SA Connect Policy, being nationwide broadband access for all citizens by 2020.

The deadline for enquiries is 4 August 2016 at 16h00, and the date for application is between 09h00 and 15h00 on 3 October 2016 with the relevant steps to follow found in the links below.

Invitation to apply for International Mobile Telecommunication Spectrum

ICASA Media Release

This was an unexpected move by ICASA to break the impasse around assignment of this spectrum, which has been held back by the insistence of the policy-maker – now the Department of Telecommunications and Postal Services and previously the Department of Communications – that ICASA must wait for a clear policy framework before proceeding. It does not appear as if the Department was aware that the ITA would be published.

Interestingly the ITA follows the Information Memorandum for radio frequency spectrum prospective licence to provide mobile broadband wireless access services for urban and rural areas using the complimentary bands, 700 MHz, 800 MHz and 2.6 GHz published by ICASA last year. As such it conflicts with indications from the Minister in and around his Budget Vote Speech that forthcoming policy would look to provide for a national wholesale wireless broadband network.

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[17 November 2015] Set out below are the various submissions received in response to the Information Memorandum for radio frequency spectrum prospective licence to provide mobile broadband wireless access services for urban and rural areas using the complimentary bands, 700 MHz, 800 MHz and 2.6 GHz:

• Broadband_Infraco
• Cell-C
• City_Telecoms
• Crystal_Web
• Ericsson
• GSMA
• ISPA
• M-Net & Orbicom
• MTN
• NAB
• Qualcomm
• SABC
• SACF
• Sentech
• Smile
• Telkom
• Transnet
• WAPA

[16 October 2015] The deadline for submissions has been extended to 30 October 2015.

The Authority extends closing date for submissions on an Information Memorandum

Notice of extension of deadline for submissions

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[5 October 2015] We have prepared a two-page summary of the ICASA Information Memorandum which also show the annual radio frequency spectrum licence fees payable in respect of each of the licenses to be auctioned.

Summary of ICASA’s Approach to Access Spectrum Assignment (September 2015)

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[13 September 2015] ICASA seems to be doing all it can to prepare for an assignment process for IMT spectrum as soon as the relevant policy is in place. The latest step takes the form of a memorandum intended to provide further information on the future licensing process for the 700 MHz, 800 MHz and 2.6 GHz bands.

Information Memorandum for radio frequency spectrum prospective licence to provide mobile broadband wireless access services for urban and rural areas using the complimentary bands, 700 MHz, 800 MHz and 2.6 GHz

The Authority issues an Information Memorandum for Comments

This has been published for public comment, which should be submitted by no later than 16h00 on Friday, 16 October 2015 as follows:

Contact person: Mr Joseph Dikgale

Tel: 011 566 3365

E-mail: JDikgale@icasa.org.za

Spectrum to be assigned

The spectrum available for award is packaged into two (2) Lot Categories and six (6) Lots as follows: