Page 30 - EngineerIt February 2021

ICT - LEGAL OPINION

ICASA’s new rule requiring

licensees to pay for emergency

Covid spectrum is invalid

By Gary Moore

In December 2020, ICASA announced that recipients of temporary emergency spectrum would
have to pay for use. This was contrary to a previous declaration that the spectrum would be

free of charge to enable mobile network operators (MNOs) to manage the vast increase in
data usage associated with lockdown. It appears that the MNOs have paid, however, lawyer
Gary Moore explains why ICASA’s action is open to legal challenge.

he 2002 Disaster Management and minimise the disaster’s effects.
Act deals with mitigating the In March and April 2020, the minister made regulations requiring government
Tseverity of disasters. It defines a institutions to make resources available and authorising other ministers to issue
disaster to include natural or other directions to address the spread of Covid-19 and alleviate its effects.
occurrences which cause or threaten Pursuant to the cooperative-governance minister’s regulations, the communications
death or disease or significant minister issued directions requiring the Independent Communications Authority of South
disruption and are of a size exceeding Africa (ICASA), for duration of the Covid-19 national disaster, to relax to the extent
the ability of those affected to cope possible its regulations governing management and licensing of radio-frequency
using only their own resources. spectrum, to enable the temporary licensing of all available spectrum bands including
The Act established a Disaster unassigned high-demand spectrum, focusing on current licensees’ ability to use such
Management Centre, which, when an spectrum expeditiously. ICASA in April 2020 made regulations with the declared
incident occurs, determines whether it purpose of facilitating the response to the national disaster and post-disaster recovery
should be regarded as a disaster and if and rehabilitation, and of implementing measures to alleviate and minimise the effects
so, assesses its size and classifies it as of the disaster and ensure continuation of the provision of services.
local, provincial or national. The Centre
has classified the Covid-19 outbreak as ICASA’s regulations declare that:
a national disaster. During the state of disaster, licensees may apply to ICASA to dispense with prescribed
The Act says that the cooperative- procedures for licensing radio-frequency spectrum, to enable them to deal with the
governance minister can then declare a anticipated rise in demand for network capacity or data services; the 700 MHz, 800
national state of disaster, if existing MHz, 2300 MHz, 2600 MHz, and 3500 MHz spectrum bands were temporarily made
arrangements do not adequately available for assignment; such temporary assignment would be revoked three months
provide for the national executive to after termination of the national state of disaster, but would not be valid after 30
deal effectively with the occurrence. November 2020; and (importantly) prescribed fees, that would have been applicable to
The minister declared a national state these spectrum bands temporarily made available, were waived. The effect was that
of disaster in March 2020 and has these high-demand spectrum bands were made available without fee, until the earlier of
renewed it monthly. 30 November, or three months after termination of the state of disaster.
When a national state of disaster is ICASA said it was making high-demand spectrum available for duration of the Covid
declared, says the Act, the minister may national state of disaster, but that this would not negate its processes underway for
make regulations to protect and help auctioning, and permanently assigning, this spectrum.
the public, and may authorise the issue In September 2020, ICASA announced an unavoidable delay in its auctioning of this
of directions regarding the release of high-demand spectrum. The auction would be completed by the end of March 2021.
available government facilities and ICASA would amend its State of Disaster Regulations to extend this spectrum’s
resources, as well as steps to contain temporary availability to 31 March 2021.

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