Telkom, Comp Comm take to appeal

Johannesburg, 09 Oct 2008

The Competition Commission and Telkom will face-off again today. This time the parties will face the Supreme Court of Appeal, after a protracted battle over the commission's right to regulate Telkom.

The commission won the right to appeal a ruling in April, when the initial case was dismissed on a technicality, and Telkom has also been granted the right to cross-appeal. Both will be heard today at the Supreme Court of Appeal.

Earlier this year, Telkom challenged the right of the Competition Commission to refer a market dominance complaint, lodged by the Value-Added Network Service Providers Association, to the Competition Tribunal.

In 2004, VANS accused the fixed-line operator of abusing its market dominance by refusing to supply them with backbone and access facilities, unless they met Telkom's conditions. They also complained that Telkom was refusing to “peer” with AT&T, and refusing facilities for AT&T to “peer” with satellite networks.

The fixed-line operator faced accusations that it refused lease access facilities to AT&T directly and was charging more than required.

The matter was referred to the Competition Commission, which ruled against Telkom and referred the matter to the tribunal.

Telkom subsequently took the matter to the courts. The heart of its case against the competition authorities lies in whether the Competition Commission had the right to refer the VANS complaint to the Competition Tribunal, and whether the Competition Tribunal has the competence to rule on the matter.

Telkom contended that the VANS complaint fell within the jurisdiction of the Independent Communications Authority of SA (ICASA) and not the commission. ICASA was authorised by the Telecommunications Act of 1996, and later by the Electronic Communications Act (ECA) of SA, to preside over the matter, the company said at the time.

The commission conceded it did not have the competence to rule on Telkom's conduct “granted to it by the ECA”; however, it insisted that Telkom must still comply with the Competition Act and had made the ruling with that in mind.