Jurisdictional disputes continue to keep the competition authorities from effectively policing the telecommunications sector.
This is according to Competition Tribunal chairman David Lewis, speaking at the Neotel-Mail & Guardian breakfast yesterday. He said the telecoms sector is ripe for competition; however, shared policing with the Independent Communications Authority of SA (ICASA) has kept the competition authorities' hands tied.
Lewis said some companies in the sector have exploited the jurisdictional confusion to their own advantage. Last year, Telkom challenged the right of the Competition Commission to refer a market dominance complaint to the Competition Tribunal, saying the effective power lay in ICASA's hands.
The authorities and Telkom battled the deal out in court, and Telkom came out on top. Lewis said there are discussions around clarifying where the regulator should police and where the competition bodies should step in.
Lewis noted the telecoms industry is plagued by abuse of dominance cases, which are a product of erstwhile state-ownership. He said companies like Telkom turned from being a state-owned monopoly to a private monopoly.
“Telkom and Eskom would have featured if our jurisdictional issues for the sectors those companies operate in had been clarified.”
According to Lewis, the problem with co-operation is that the Competition Commission and the tribunal have developed different work cultures to that of ICASA. He commented that, in the 10 years of his chairmanship, there has not been a single company wanting to “discuss” a competition matter outside of the formal process.
He highlighted the last-minute decision by ICASA to rescind its approval of the Vodacom sale to Vodafone earlier this year. “This simply would not have happened at the tribunal. The three panellists sat together, discussed the matter and made a decision.”
The fact that ICASA can be approached for informal discussions means its mind can be changed, he pointed out.
Lewis added that, while the regulator does have a different set of challenges, there must be change at ICASA, as it needs to address its processes and culture.
ICASA was not available for comment this morning.
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