Despite a court victory, Icasa is still allowing a company without a licence to operate.
A judgment handed down by the Johannesburg high court has opened the way for the Independent Communications Authority of South Africa (Icasa) to take back spectrum from the unlicensed Wireless Business Solutions, an information communications technology company that owes the authority more than R100-million in unpaid fees.
But the authority has made no move to do so, even though the judgment, which found that WBS, the parent company of iBurst and Broadlink, is contravening the Electronic Communications Act, was handed down on April 22.
WBS is appealing against it.
A number of facts have been revealed by the dispute:
- WBS has not paid licence fees since the 2009-2010 financial year and, as a result, according to the judgment handed down by Judge Tony Mundell, it does not hold a valid licence to operate;
- WBS has continued to operate and benefit financially from the use of spectrum for which it has no valid licence;
- WBS, according to a letter between its chief executive and the Icasa chairperson, owes at least R60-million in outstanding fees. But the Mail & Guardian has previously reported that Icasa councillor Joseph Lebooa said the amount owed was more than R100-million;
- Two of the six licences in dispute are for spectrum in the lower frequency ranges, which is ideal for LTE, or 4G, technology and in high demand;
- The Act does not allow Icasa to renew WBS’s licence once it has expired; and
- Icasa has failed to stop WBS from illegally operating on the network. Mundell said in his judgment that the Promotion of Administrative Justice Act, for one, allowed Icasa to cancel or suspend the six licences.
The stand-off between WBS and Icasa has been widely publicised.
WBS brought the case against the authority in April last year after Icasa inspectors investigating the case obtained and executed a warrant to search and seize equipment on the grounds that the company owed at least R60-million for licence fees and a great deal more for operating illegal radio links.
Two months before the seizure of equipment, Icasa’s Lebooa was hijacked, beaten and taken on a three-hour hell ride. He alleged his assailants said they were sent by WBS and told him to abandon his efforts to have the company settle its outstanding fees. WBS denied any involvement in the attack.
The first part of WBS’s application sought an urgent interdict requiring Icasa to return its equipment, which was granted at the time by the court.
The second, less urgent part of the application sought a declaratory order that WBS is licensed to operate the network on six frequency spectrums and asked the court for an order to review or set aside the suspension or cancellation of its licence.
But Mundell dismissed the second part of WBS’s application, with costs, on the grounds that WBS was operating in contravention of Section 31(1) of the Electronic Communications Act. He also said that Icasa’s warrant to seize WBS equipment was valid and he was not convinced that there was any reason to set it aside.
“The applicant [WBS] did not pay the required fees. The result of that nonpayment is that the applicant may not engage in the operation of the network as it is not in possession of radio frequency spectrum licences granted by the respondent,” Mundell ruled.
WBS has reassured customers that it will continue to service them and that its equipment is not at risk of being seized again.
Dominic Cull, a telecoms expert at Ellipsis, said the interests of WBS’s subscribers are paramount.
“The key issue here is that WBS is servicing a large number of subscribers. Broadlink in particular is providing a service [to] a number of subscribers, some of which are JSE listed. To shut it down is not a solution; it will cause significant economic harm.”
He said: “Two weeks is not enough time for Icasa to act. Basically there has to be an agreement on what the amount is that is outstanding and how it will be repaid. The calculation should be an extremely easy exercise.”
Richard Boorman, Vodacom’s executive head of media relations, said Vodacom believed that unused spectrum should be returned for reassignment and that “there are clear regulations” that apply to this.
“Access to sufficient spectrum is a concern,” he said. “With additional spectrum in the right bands, we can accelerate the roll-out of data coverage to more of the population. The availability of spectrum also has an impact on costs, with a knock-on effect on our ability to continue to reduce data prices.”
MTN said it was also monitoring the developments closely.
But even if the high-demand spectrum makes its way back into Icasa’s pool, the department of communications has delayed issuing a policy directive on how high-demand spectrum should be allocated, which has stymied the application and allocation process.
Gareth Mellon, the team leader for information and communication technologies at Frost & Sullivan, said the debate about spectrum allocation has been ongoing and the difficulties over WBS’s licences are likely to complicate matters further.
“The lack of clear policy has been a major constraint in the past and there are also legal ramifications to spectrum allocations. It is, therefore, unlikely that reallocations will occur quickly, particularly given Icasa’s track record.”
Icasa and WBS did not respond to requests for comment.