86
No. 28743
Act No. 36, 2005
GOVERNMENT GAZETTE, 18 APRIL 2006
ELECTRONIC COMMUNICATIONS ACT, 2005
(a) define and identify the retail or wholesale markets or market segments in
which it intends to impose pro-competitive measures in cases where such
markets are found to have ineffective competition;
(b) set out the methodology to be used to determine the effectiveness of
competition in such markets or market segments, taking into account
subsection (8);
(c) set out the pro-competitive measures the Authority may impose in order to
remedy the perceived market failure in the markets or market segments found
to have ineffective competition taking into account subsection (7);
(d) declare licensees in the relevant market or market segments, as applicable,
that have significant market power, as determined in accordance with
subsection (6), and the pro-competitive conditions applicable to each such
licensee;
(e) set out a schedule in terms of which the Authority will undertake periodic
review of the markets and market segments, taking into account subsection (9)
and the determination in respect of the effectiveness of competition and
application of pro-competitive measures in those markets; and
(f) provide for monitoring and investigation of anti-competitive behaviour in the
relevant market and market segments.
(5) A licensee has significant market power with regard to the relevant market or
market segment where the Authority finds that the particular individual licensee or class
licensee—
(a) is dominant;
(b) has control of essential facilities; or
(c) has a vertical relationship that the Authority determines could harm
competition in the market or market segments applicable to the particular
category of licence.
(6) The methodology contemplated in subsection (4)(b) must include but is not
limited to an assessment of the following:
(a) When defining the relevant market or market segments the Authority must
consider the non-transitory (structural, legal, or regulatory) entry barriers to
the applicable markets or market segments and the dynamic character and
functioning of the subject markets or market segments;
(b) When conducting an analysis of the effectiveness of competition in the
relevant markets or market segments the Authority must take the following
factors, among others, into account:
(i) An assessment of relative market share of the various licensees in the
defined markets or market segments; and
(ii) A forward looking assessment of the market power of each of the market
participants over a reasonable period in terms of, amongst others:
(aa) actual and potential existence of competitors;
(bb) the level, trends of concentration, and history of collusion, in the
market;
(cc) the overall size of each of the market participants;
(dd) control of essential facilities;
(ee) technological advantages or superiority of a given market participant;
(ff) the degree of countervailing power in the market;
(gg) easy or privileged access to capital markets and financial resources;
(hh) the dynamic characteristics of the market, including growth,
innovation, and products and services diversification;
(ii) economies of scale and scope;
(jj) the nature and extent of vertical integration;
(kk) the ease of entry into the market, including market and regulatory
barriers to entry.
(7) Pro-competitive terms and conditions may include but are not limited to—
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