The Competition Commission yesterday vigorously defended its turf in Parliament. Provisions in the draft Convergence Bill that confused competition issues should be deleted or amended, it stated.
The commission`s view is that concurrent jurisdiction over competition issues with telecoms regulator, the Independent Communications Authority of SA (ICASA), is a compromise created to deal with clauses in legislation that were passed before 1998.
Zondwa Ntuli, manager of the commission`s compliance division, and Fungai Sibanda, head of policy and projects, represented the commission in Parliament.
They were speaking before the Parliamentary Portfolio Committee on Communications, which started the first round of public hearings into the Convergence Bill yesterday.
"Concurrent jurisdiction is not ideal and is not best practice to regulate competition," Ntuli said.
She added that problems created by concurrent jurisdiction include "forum shopping - whereby litigants look for the forum where they will try and get the most sympathetic hearing", the wasteful duplication of resources, a myriad of legal interpretations - creating legal anomalies, confusion in legal redress processes and double jeopardy.
Ntuli acknowledged that there was still a role for the communications regulator, but this focused on technical issues governing the ICT sector, while competition issues remained the preserve of the Competition Commission.
Troublesome clauses
The Competition Commission recommends that competition authorities (which includes the Competition Tribunal and courts) should be responsible for competition matters across all sectors. It urged that section 63 of the Convergence Bill be revised to remove ICASA`s mandate on competition issues.
According to the commission, the Convergence Bill fails to recognise that dominance does not equal market power.
"In terms of the Competition Act, a firm that has less than 35% market share may be dominant if it possesses market power. Similarly, a firm with more than 35% but less than 45% of the market is deemed dominant unless it can prove that it does not have market power," the commission said in its presentation.
Other troublesome parts of the Bill were pointed out. These are section 63, sub-section one that implies the Bill trumps the Competition Act, and sub-section three that gives the regulator powers to pronounce on competition matters such as discriminatory pricing. Sub-section four causes confusion over the investigation of anti-competitive conduct, and sub-section five prohibits locking, blocking or prevention of any end-user equipment from being used with any licensed communication service as anti-competitive.
The next round of hearings into the Convergence Bill will be held on Friday.
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