Business Day (Johannesburg)
Hilary Joffe
5 May 2006
Johannesburg — A COMPETITION Commission official has called for the amendment of SA's new Electronic Communications Act, even before it comes into effect, on the grounds that it would take competition regulation in the sector "a step backwards".
But the Independent Communications Authority of SA (Icasa) has argued that there is no need for an amendment as the new act could meet the objectives of both competition and communication regulators.
The act, often referred to as "convergence" legislation, brings together regulation of SA's broadcast, telecommunications and other electronic communications sectors. It passed through Parliament recently.
The Competition Commission's senior manager, Fungai Sibanda, said yesterday the new act "trumped" SA's competition legislation, granting extensive powers to the sector regulator to oversee competition
Sibanda was speaking in Cape Town at the fifth international conference of the International Competition Network (ICN), a forum that represents 97 competition authorities. He said section 53 of SA's old Telecommunications Act gave the competition authorities and the sector regulator concurrent jurisdiction to investigate "uncompetitive conduct" in telecoms, which was never meant to be permanent.
However, the new act would grant a lot more powers to the sector regulator, encroaching on the competition authorities. It could lead to "forum shopping", where players took advantage of differences between regulators, and raised the possibility of inter-agency friction, he said.
Icasa commissioner Lumko Mtimde said the act was the outcome of an extensive public consultation process. "The (act) provides a means to achieve the complementary objectives of both the competition and communications laws.
"In the interests of the growth and development of the sector, further delays to the commencement of the (act) would be unfortunate," Mtimde said.
In most countries, telecommunications is overseen by competition regulators and sector-specific regulators, often raising difficult questions of jurisdiction.
However, in SA, the issue has been in the courts for more than four years. In a complaint against Telkom by a group of internet service providers, the Competition Commission found ample evidence of anticompetitive conduct by Telkom. But Telkom went to the high court to challenge the jurisdiction of the competition authorities before the commission could refer the case up to the Competition Tribunal.
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