Inquiry into Mobile Broadband Services

1. Introduction

1. ICASA hereby gives notice of intention to conduct an inquiry into mobile broadband services in terms of section 4B of the Independent Communications Authority of South Africa Act No.13 of 2000 (“the ICASA Act”), read with section 67(4) of the Electronic Communications Act No.36 of 2005 (“the ECA”).

2. The inquiry follows the conclusion of the inquiry to identify priority markets in the electronic communications sector wherein the Authority made a finding that, inter alia, Mobile services will be prioritised for a market inquiry.

2. Legal basis for the Inquiry

1. The primary object of the ECA is to provide for the regulation of electronic communications in South Africa in the public interest and for that purpose to, inter alia, “promote competition within the ICT sector”

2. The Authority is empowered to address any competition matters in terms of Chapter 10 of the ECA.

3. In terms of section 67(4) of the ECA, the Authority must, “…following an inquiry (our emphasis), 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-

(a) define relevant wholesale and retail markets or market segments;
(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…; and
(f) provide for monitoring and investigation of anti-competitive behaviour in the
relevant market and market segments.”

4. Section 4B of the ICASA Act states that “The Authority must conduct an inquiry into any matter with regard to:

(a) The achievement of the objects made in terms of this Act or underlying statutes;
(b) Regulations and guidelines made in terms of this Act or underlying statutes;
(c) Compliance by applicable person with this Act or underlying statutes;
(d) Compliance with the terms and conditions of any licence by the holder of such
licence issued pursuant to the underlying statues; and
(e) The exercise and performance of its powers, functions and duties in terms of
this Act or the underlying statutes.”

3. The purpose of the Inquiry

The purpose of this inquiry is to assess the state of competition and determine whether or not there are markets or market segments within the mobile broadband services value chain which may warrant regulation in the context of a market review in terms of section 67(4) of the ECA.

4. The Inquiry process

The Authority will conduct the inquiry in a series of phases as follows.

Phase 1 (commencement of the market inquiry)

1. The Authority has published a notice and a questionnaire or request for information and opinions from market participants and stakeholders.
2. The information and opinions obtained from market participants and stakeholders will be taken into account when defining relevant markets or market segments; evaluating the effectiveness of competition in the relevant markets; determining which licensees have significant market power (where there is ineffective competition).
3. Stakeholders were given ten (10) calendar days, from the date of publication of the Notice and a questionnaire or request for information, to send any questions of clarity on process and questionnaire or request for information to the Authority for the attention of the Chairperson (Market Inquiry Council Committee) at MarketInquiry2018@icasa.org.za.
4. The Authority will respond to all questions of clarity by publishing a briefing note on the Authority’s website within ten (10) calendar days of the closing date for submission of clarification questions.
5. Stakeholders are hereby invited to submit written representations on matters outlined in this Notice as well as written responses to the questionnaire or request for information within forty-five (45) working days from the date of publication of the Authority’s responses to questions of clarity.
6. A copy of this Notice and a questionnaire or request for information are available on this link.
7. Written representations regarding matters outlined in this Notice and a questionnaire or request for information must be submitted to the Authority by no later than 16h00 by the deadline indicated in paragraph (e) above by post or hand delivery or facsimile or email and marked specifically for attention: Chairperson: Market Inquiry Council Committee,
   Councillor Botlenyana Mokhele, Block C, 350 Witch-Hazel Avenue, Eco Point Office Park, Eco Park Centurion, Gauteng Tel: 012 568 3125 Fax: 012 568 3126; Email: MarketInquiry2018@icasa.org.za
8. Written representation(s) and information received by the Authority pursuant to this Notice, will be made available for inspection by interested persons at the Authority’s website.
9. At the request of any person who submits written representations and/ or information pursuant to this Notice, the Authority may determine that such representations or information or any portion thereof is to be treated as confidential in terms of section 4D of the ICASA Act.
10. Where the request for confidentiality is refused, the person who made the request will be allowed to withdraw such representations or portion(s) thereof.
11. Persons submitting written representations and/or information are further invited to indicate, as part of their submissions, whether they require an opportunity to make oral representations should the Authority decide to hold public hearings.

Phase 2 (Discussion Document)

1. The Authority will publish in the Gazette a Discussion Document, which will be informed by the information submitted by stakeholders in the context of Phase 1 and any other research or bench-marking exercises which may be conducted by the Authority.
2. The Discussion Document will be published for public comments for a period of forty-five (45) working days.
3. Stakeholders may submit written representations on the Discussion Document and must indicate whether they require an opportunity to make oral representations at public hearings as contemplated by section 4B(2)(b) of the ICASA Act.

Phase 3 (Public Hearings on the Discussion Document)

1. The Authority may hold public hearings on the responses to the Discussion Document, if deemed necessary.
2. The Authority will, if it deems it necessary to hold public hearings, notify stakeholders of the date, time and the venue of the public hearings.

Phase 4 (Findings Document and draft Regulations)

1. The Authority will publish in the Gazette a summary of the findings in terms of section 4C (6) of the ICASA Act and draft regulations (if necessary).
2. The draft regulations will be published for public comment for a period of thirty (30) working days.

Phase 5 (Public Hearings)

1. The Authority may hold public hearings on the responses to the draft regulations.
2. The Authority will, if it deems it necessary to hold public hearings, notify stakeholders of the date, time and the venue of the public hearings.

Phase 6 (Final Regulations and the Reasons Document)

1. Having considered the views of all stakeholders, the Authority will publish in the Gazette final regulations and the reasons document.

Confidentiality

• A stakeholder can request confidentiality on the information submitted in terms of section 4D of the ICASA Act.
• The request for confidentiality in terms of section 4D of the ICASA Act must be accompanied by a confidential and non-confidential version of the submission.
• The Authority hereby refers stakeholders to the Guideline for Confidentiality published on 17 August 2018 in Gazette No. 41839 to assist the stakeholders when applying for confidentiality.

As the inquiry unfolds, the Authority may introduce additional phases or steps, where necessary, to keep stakeholders appraised of the progress of the inquiry and the Authority’s thinking on the matters being assessed.

The Authority may conduct industry workshops or public briefing sessions in relation to matters of process.

5. Information requirements

5.1. Section 67(4B) of the ECA provides that, subject to section 4D of the ICASA Act, licensees are required to provide to the Authority any information specified by the Authority in order to enable the Authority to carry out its duties in terms of section 67 of the ECA.

5.2. The Authority may ask for and receive from the Competition Commission, information, assistance or advice on this inquiry in terms of the Memorandum of Agreement.

6. Timelines

6.1. The Authority aims to finalise this inquiry in the 2019/2020 financial year.

All communications relating to this Inquiry must be directed to Chairperson: Market Inquiry
Council Committee at MarketInquiry2018@icasa.org.za.