Digital ruling a fresh twist in long-running spectrum saga

The Constitutional Court has declared unconstitutional the date for switching SA television signals from analogue to digital, a ruling that may delay putting in the hands of mobile phone operators one of the prized resources of the digital age.

The ruling on Tuesday came almost three months after the Independent Communications Authority of SA, an industry watchdog, auctioned off more than R14-billion worth of radio frequency band to companies such as Telkom, MTN and Vodacom, which is expected to reduce the cost of communication in an ailing economy.

The auction included the ultrahigh frequency 700MHz and 800MHz spectrum band held by television broadcasters. The broadcasters have been challenging the government in court on how and when to switch from analogue to digital. The switch would have freed up the airwaves that penetrate buildings and are crucial to policy goals of extending coverage in rural areas.

The migration had been expected to be completed in the 2021/2022 financial year under the guidance of communications & digital technologies minister Khumbudzo Ntshavheni, who is “studying the judgment”. The migration cut-off date was set for March 31 but a high court ruling moved that to June 30.

Free-to-air broadcaster e.tv, together with Media Monitoring Africa (MMA) and SOS Support Public Broadcasting, lobbied for more time to complete the digital migration and to ensure that government-subsidised set-top boxes are deployed into more indigent households.

The Constitutional Court set down an order “declaring the analogue switch-off date and the imposed deadline to register for set-top boxes unconstitutional, invalid and set aside”. This is likely to result in the process being delayed further as the minister determines a new deadline. Initially, the government’s rollout included installation of set-top boxes to convert digital signals to analogue for older television models, as well as the setting up of antennas where necessary.

In the judgment, Nonkosi Mhlantla determined that the switch-off date “was not procedurally rational for the minister to set it without adequate notice to the industry and affected parties, like MMA and SOS, to seek their views on the matter”.

The judgment appears to be more of an indictment of previous communications head Stella Ndabeni-Abrahams, who was part of the digital migration process from 2014, first as deputy minister and then minister from late 2018.

Ntshavheni, who has been vocal about finishing the process, took over the portfolio in a cabinet reshuffle in August 2021.

The court considered the process leading up to the deadline of October 31 2021 to register for set-top boxes and be supplied with them.

Mhlantla held that there was no sense of urgency on the steps taken before October 2021 and “there was insufficient evidence before the court on the steps taken by the minister between February 2021 and October 2021 to notify the public of the urgent need to register for settop boxes”.

Part of the rationale for the extension to June had been to align with the licensing start date of newly allocated radio frequency spectrum to mobile operators. The validity period of the spectrum licences is set to start on July 1.

For mobile operators that

7

years since the ITU’s deadline to migrate

R14bn

spent by companies such as MTN and Vodacom in the auction of radio frequency bands

participated in the auction in March, the ruling means they will not enjoy the full commercial benefits of their investment for a while longer.

All this comes seven years after the June 2015 deadline set by the International Telecommunication Union to switch to digital terrestrial television and almost 11 years after the government’s own deadline of November 2011.

Digital migration has been a thorn in the government’s flesh, and the heat has been turned up in the past two years as the telecoms regulator fought to issue radio frequency spectrum to mobile operators, a process that has been stymied by delays.