Vodacom’s spectrum pooling case in opposition to communications regulator Icasa and telecoms operators MTN, Cell C and Liquid Clever Applied sciences will quickly be heard within the excessive courtroom in Pretoria.
The matter was initially scheduled to be heard this week — from Tuesday — however TechCentral understands that the events have agreed on the final minute to a postponement for a case administration assembly on 20 August with deputy decide president Aubrey Ledwaba. This assembly will probably be used to agree on timelines for the listening to and to nominate a decide to listen to the matter. That is after some respondents apparently voiced considerations in regards to the schedule.
TechCentral reported in Could that Vodacom had filed an pressing interdict with the courtroom in search of to cease rival MTN from utilizing spectrum pooling preparations that Vodacom has claimed had been unlawfully authorised by Icasa in 2022.
In its submitting, Vodacom claimed the preparations, which included one between MTN and Cell C and one other between MTN and Liquid, have positioned it – in addition to Telkom and Rain – at a aggressive drawback. It recommended that is the principal purpose impartial exams have proven MTN to have a superior community to its personal in recent times.
Vodacom additional alleged that the spectrum pooling offers had been authorised by Icasa in secret with none public participation as required beneath the Digital Communications Act. Telkom, in its personal responding affidavit (it’s the sixth respondent within the case), agreed with Vodacom’s assertion, saying the secrecy relating to the approvals undermined the regulatory safeguards woven into the spectrum public sale course of.
Following Vodacom’s preliminary submitting, responding affidavits by Icasa, MTN, Cell C and Liquid as the primary, third, fourth and fifth respondents within the case, respectively, had been additionally filed with the courtroom. Rain, which is listed because the seventh respondent, didn’t file papers and informed TechCentral in response to a question that it’s “not concerned within the matter”.
‘Spurious’
Previous to going again to courtroom, Vodacom then had the chance to file an affidavit in response to the answering affidavits filed by the accused events. This doc, seen by TechCentral, is the idea of the arguments Vodacom will broaden on in open courtroom as soon as a listening to date has been confirmed — presumably at or quickly after the 20 August assembly.
One in every of these arguments is that makes an attempt by the accused events to refute Vodacom’s declare of illegality have been “spurious” at greatest, additional legitimising the corporate’s declare.
“MTN refrains from providing any rebuttal at all the unlawfulness… That is noteworthy,” stated Andrew Barendse, managing govt for regulatory affairs at Vodacom, within the firm’s responding affidavit. “Secondly, a few of the tried rebuttals are so clearly strained as to solid deal with the energy of the case for unlawfulness.”
Learn: We’re not regulation breakers: MTN hits again at Vodacom lawsuit
Vodacom stated one of many “most clearly illegal” points of the pooling preparations was using unlicensed and unassigned “guard bands”.
Guard bands are slivers of spectrum between blocks belonging to totally different licensees which can be intentionally stored empty to minimise interference.
MTN, in its response filed earlier, downplayed the significance of the guard bands, calling them “archaic” and “small”. Icasa stated the matter of guard band abuse, if there was any, must be heard by the regulator’s complaints and compliance committee (CCC); Barendse described this response as “laconic”.
Barendse held up Vodacom’s preliminary request that the courtroom ought to urgently interdict the pooling agreements whereas it seeks an final result within the matter, regardless of arguments in opposition to this. Icasa chairman Mothibi Ramusi in his responding affidavit stated Vodacom’s utility must be struck from the roll because of a “self-created urgency deserving of a punitive value order”.
However Barendse flipped the matter on its head, saying Icasa was “evasive” and “torpid” when queried by Vodacom in regards to the pooling association.
““Vodacom couldn’t rush to the courts with out participating Icasa because the regulator first. Anticipating Vodacom to permit the advantaged place of MTN, derived from illegal approvals, to be entrenched whereas the method of a evaluate performs itself out within the courts can be unjust and render final success on evaluate doubtlessly worthless (futile),” stated Barendse,” stated Barendse.
He added that it could be “manifestly tough”, if not not possible, to undo the aggressive advantages that MTN, particularly, will proceed to achieve because of the allegedly unlawfully authorised pooling preparations whereas the matter remains to be being heard by the courts.
Barendse stated it was “simple” that Vodacom had suffered aggressive hurt because of the pooling preparations. However one of many arguments introduced ahead by the accused events is that the agreements are a type of spectrum sharing – which is technically totally different from spectrum pooling – and offered for throughout the regulatory framework, they stated. Barendse stated the title given to the preparations will not be materials to figuring out their illegality.
Dispute over discussion board
“Vodacom’s case for unlawfulness doesn’t depend upon this distinction. If the excellence is accepted, then this pooling is one thing Icasa will not be competent to authorise and license, but when the excellence will not be accepted, this doesn’t imply sharing can happen with out the right licensing of shared spectrum,” he stated.
When authorized proceedings start, the excessive courtroom’s tackle the argument by Icasa’s Ramusi that the courtroom doesn’t have jurisdiction to listen to the matter will probably be crucial for Vodacom’s case. If the courtroom agrees with the regulator, the matter could also be struck from the roll.
Ramusi has argued that Vodacom ought to have approached the competitors authorities – both the Competitors Fee or the Competitors Tribunal – or the CCC as an alternative of the excessive courtroom.
However Barendse stated in his affidavit that though the ensuing aggressive drawback was a part of Vodacom’s case – and a problem Icasa should have examined along with the competitors authorities earlier than approving the spectrum pooling preparations – Vodacom is nonetheless not arguing unlawfulness based mostly on the Competitors Act. Slightly, it’s based mostly on the Digital Communications Act, the place Icasa has purview.
He stated Vodacom couldn’t complain to Icasa and make use of Icasa’s complaints procedures in respect of conduct Icasa itself authorised.
“I word that Icasa requested MTN, Cell C and Liquid for his or her views on the results of their proposed association on competitors however deny that that constituted a correct competitors evaluation when it comes to the Digital Communications Act,” stated Barendse. – © 2024 NewsCentral Media
