Vodacom South Africa has lost its legal battle against the spectrum pooling agreements of its competitors, MTN, Cell C, and Liquid Intelligent Technologies.
Vodacom’s request for an urgent interdict to stop these arrangements until a full trial on their legality was denied by the Pretoria High Court. The decision was made public on Tuesday.
Vodacom challenges legality of ICASA’s spectrum approval for MTN
Vodacom alleged that the Independent Communications Authority of South Africa (ICASA) secretly and illegally approved these spectrum pooling arrangements, which gave MTN an unfair advantage in network speed and quality tests.
According to Andrew Barendse, managing executive for regulatory affairs at Vodacom, the issue at stake was “the approval by the first respondent (ICASA) of the ‘pooling’ of high-demand spectrum between MTN, Cell C and Liquid, in secret, in a manner contrary to the requirements of the Electronic Communications Act, and unlawful in other respects”.
After reviewing independent speed testing, including Ookla’s, Vodacom suspected MTN’s advantage and investigated its spectrum utilisation.
Barendse noted that spectrum utilisation was the “only plausible explanation,” given similar site allocations and radio access network equipment.
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Court rejects Vodacom’s interdict request
The court acknowledged that Vodacom had established an explicit right to seek relief but chose to exercise its “overriding discretion” not to grant the interdict.
Judge Etienne Labuschagne stated, “The overriding consequence of the pooling of spectrum is the improvement of fast and reliable electronic communications”. Due to enhanced information availability and MTN and Cell C’s network investments after ICASA approved the pooling arrangements, this decision was made.
The court also found that ICASA had failed in its duty to engage in public participation before approving the pooling arrangements and that its competition assessment was inadequate, as Vodacom’s perspective was not considered.
Despite this, the court noted that Vodacom could have applied for similar pooling agreements under the same processes used by ICASA for MTN, Cell C, and Liquid.