STAATSKOERANT, 24 JANUARIE 2014
No. 37261
5.2.4.1 Regulation issues affecting competition
The Independent Communications Authority is currently able to impose regulations affecting
the following activities and issues:
5.2A.1.1 Interconnection
The Authority prescribes regulations to facilitate the conclusion of interconnection
agreements that allow different operators to connect their networks. The regulations and
interconnection principles contain model terms and conditions including timeframes and
procedures for agreements. Subject to these regulations any person licensed can, on
request, interconnect to any person providing a service in terms of the Electronic
Communications Act. Interconnection agreements must be filed with the regulator. In
addition, ICASA regulates carrier pre-selection that enables subscribers of one service to be
able to switch services and use any other provider.
The Regulator has developed regulations consistent with the provisions of the Act. Amongst
other things, the regulations deal with the requirement on operators to publish
interconnection offers, including the location of interconnect facilities, capacity of the
facilities, and prices charged. This is to ensure that everyone knows of the interconnection
opportunities. The regulations are geared towards transparency in the interconnection
engagements of different competitors.
The current regulations do not deal with the prices charged and the terms of financial
arrangements between parties. Parties are only required to notify the Authority and file the
agreements, without the Authority dealing with the terms of the agreements. The bigger
operators still have price-setting potential over the smaller competitors who seek to
interconnect as the only way of survival.
While interconnection regulations are important and have the potential to level the playing
fields, they are constrained by what the regulator can or cannot do to regulate the financial
arrangements between the parties entering into connection agreements. Interconnection
regulations cannot be enough without the full implementation of the competition sections of
the Electronic Communications Act, which can impose pro-competitive remedies in case of
unfair discrimination or abuse of dominance.
5.2.4.1.2 Electronic Communications Facilities Leasing
The Authority prescribes regulations to facilitate the conclusion of facilities leasing
agreements between different operators. The regulations cover both the essential and basic
facilities. The regulations disallow any preferential or exclusive arrangements and provides
for measures to deal with undue delays in entering into facilities leasing agreements. The
facilities leasing regulations may exempt operators without Significant Market Power from
the requirement to enter into facility leasing agreements. For purposes of promoting new
investments in broadband fibre networks, the Authority may exempt even operators with
Significant Market Power (SMP) from the requirements to lease fibre loops and sub-loops
serving residential premises, if they meet certain conditions. These conditions extend
exemptions to facilities that were built after the Act came into effect, facilities that serve
areas that were not served prior to construction, or are in an area where the new facilities
are constructed to compete with an incumbent operator. The Authority may prescribe
regulations for wholesale rates for facilities leasing.
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