No. 4378
Act No. 8, 2009
Government Gazette 16 November 2009
53
COMMUNICATIONS ACT, 2009
(a)
it will promote the objects of this Act;
(b)
complying with the duty in question will affect the provision of a class
of telecommunications services detrimentally; or
(c)
the burden imposed upon any provider of telecommunications services
is disproportionate with the benefit that will be derived from the
facilitation of interception by complying with the duty in question.
PART 7
MISCELLANEOUS MATTERS
Determination of dominant position
78.
(1)
Subject to subsection (2) the Authority must hold a hearing
within one year from the date of commencement of this Act and thereafter every three
years in order to determine which licensees hold a dominant position in the market.
(2)
A licensee may request the Authority to conduct such a hearing earlier
than required by subsection (1) and the Authority must hold such hearing, if the licensee
requesting such a hearing presents sufficient information to the Authority to convince it
that there is a prima facie case that a different licensee has become a dominant provider
of telecommunications services.
(3)
The Authority may also conclude that a licensee is dominant in respect
of a specific class of telecommunications services when it is considering a matter where
the question of dominance is relevant: Provided that it gives all parties affected by that
finding an opportunity to be heard on that matter.
(4)
Subject to subsection (5), the Authority must find a licensee to be
dominant if it is of the opinion that –
(a)
the licensee in question has such a share of the market in the class
of telecommunications services in question, that it is able to act
independent of its competitors;
(b)
the licensee controls some infrastructure that is necessary for the
provision of the services in question;
(c)
the licensee in question is dominant as provided in paragraph (a)
or (b) in respect of a class of related services (which need not be
telecommunications services) and the licensee can use that dominance
to exercise power in the market for the telecommunications services in
question; or
(d)
the licensee in question has a position in a market in another country
or a relationship with providers in another country that can be
used to exercise market power in respect of the relevant class of
telecommunications services in Namibia.
(5)
The Authority must consider the market power that may be exercised
by a competitor of the licensee concerned in order to determine whether any of the
matters referred to in subsection (4) will give the licensee concerned market power as
contemplated in subsection (4).