| (1) | [Section 67(1) deleted by section 28(a) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)] |
| (2) | [Section 67(2) deleted by section 28(a) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)] |
| (3) | [Section 67(3) deleted by section 28(a) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)] |
| (4) | The Authority must, following an inquiry, prescribe regulations defining the relevant markets and market segments and impose appropriate and sufficient pro-competitive licence conditions on licensees where there is ineffective competition, and if any licensee has significant market power in such markets or market segments. The regulations must, among other things— |
| (b) | determine whether there is effective competition in those relevant markets and market segments; |
| (c) | determine which, if any, licensees have significant market power in those markets and market segments where there is ineffective competition; |
| (d) | impose appropriate pro-competitive licence conditions on those licensees having significant market power to remedy the market failure; |
| (e) | set out a schedule in terms of which the Authority will undertake periodic review of the markets and market segments, taking into account subsection (9) and the determination in respect of the effectiveness of competition and application of pro-competitive measures in those markets; and |
| (f) | provide for monitoring and investigation of anti-competitive behaviour in the relevant market and market segments. |
[Section 67(4) substituted by section 28(b) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]
| (4A) | When determining whether there is effective competition in markets and market segments, the Authority must consider, among other things— |
| (a) | the non-transitory (structural, legal, and regulatory) entry barriers to the applicable markets or market segments; and |
| (b) | the dynamic character and functioning of the markets or market segments, including an assessment of relative market share of the various licensees or providers of exempt services in the markets or market segments, and a forward looking assessment of the relative market power of the licensees in the markets or market segments. |
[Section 67(4A) inserted by section 28(c) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]
| (4B) | Subject to section 4D of the ICASA Act, licensees must provide to the Authority any information specified by the Authority in order that the Authority may carry out its duties in terms of this section. |
[Section 67(4B) inserted by section 28(c) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]
| (5) | A licensee has significant market power in a market or market segment if that licensee— |
[Section 67(5) substituted by section 28(d) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]
| (6) | [Section 67(6) deleted by section 28(e) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)] |
| (7) | Pro-competitive terms and conditions may include but are not limited to— |
| (a) | obligations in respect of interconnection and facilities leasing in addition to those provided for in Chapters 7 and 8 and any regulations made in terms thereof; |
| (b) | penalties for failure to abide by the pro-competitive licence conditions; |
| (c) | obligations to publish any information specified by the Authority in the manner specified by it; |
| (d) | obligations to maintain separate accounting for any services specified by the Authority; |
| (e) | obligations to maintain structural separation for the provision of any services specified by the Authority; |
| (f) | rate regulation for the provision of specified services, including without limitation price controls on wholesale and retail rates as determined by the Authority, and matters relating to the recovery of costs; |
| (g) | obligations relating to accounts, records and other documents to be kept, provided to the Authority, and published; |
| (h) | obligations concerning the amount and type of premium, sports and South African programming for broadcasting; and |
| (i) | distribution, access and reselling obligations for broadcasters. |
[Section 67(7) substituted by section 28(f) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]
| (8) | Review of pro-competitive conditions: |
| (a) | Where the Authority undertakes a review of the pro-competitive conditions imposed upon one or more licensees under this subsection, the Authority must— |
| (ii) | decide whether to modify the pro-competitive conditions set by reference to a market determination; |
| (b) | Where, on the basis of a review under this subsection, the Authority determines that a licensee to whom any pro-competitive conditions apply is no longer a licensee possessing significant market power in that market or market segment, the Authority must revoke the applicable pro-competitive conditions applied to that licensee by reference to the previous market determination based on earlier analysis; |
| (c) | Where, on the basis of such review, the Authority determines that the licensee to whom pro-competitive conditions apply continues to possess significant market power in that market or market segment, but due to changes in the competitive nature of such market or market segment the pro-competitive conditions are no longer proportional in accordance with subsection (7), the Authority must modify the applicable pro-competitive conditions applied to that licensee to ensure proportionality. |
[Section 67(9) substituted by section 15 of Notice No. 875, GG 32533, dated 28 August 2009]
| (10) | The Authority is, for the purposes of the Competition Act, a regulatory authority defined in section 1 of that Act. |
| (11) | The Authority may ask for and receive from the Competition Commission, assistance or advice on relevant proceedings of the Authority, including proceedings under this Chapter. |
| (12) | The Competition Commission may ask for and receive from the Authority, assistance or advice on relevant proceedings of the Competition Commission. |
