Communications Act, 2009
Regulations to ensure fair competition in the telecommunications sector: Communications Act, 2009
General Notice 179 of 2018
- Published in Government Gazette 6593 on 14 May 2018
- Commenced on 14 May 2018
- [This is the version of this document from 14 May 2018 and includes any amendments published up to 14 June 2024.]
Part 1 – INTRODUCTORY PROVISIONS
1. Definitions
In these regulations, any word or expression to which a meaning is assigned in the Act has that meaning, and-“Act” means the Communication Act, 2009 (Act. No. 8 of 2009);“agreement” means any form of contract, arrangement or understanding, whether or not legally enforceable, between licensees, and includes a decision by an association of licensees and a concerted practice;“anti-competitive practice” means any practice or activity that has the object or effect of preventing, restricting or distorting competition in a relevant market for the supply of telecommunications or any product or service used in connection with these services;“Cost Accounting Regulations” means the Regulations Setting Out Cost Accounting Procedures and Reporting Requirements, 2013 (Regulations No. 474 of 6 December 2013);“bundling of services” means combining of various telecommunications services provided by a licensee in one package under a bundled rate or rate formula where the offering of one or more services within the package is conditional on acceptance of the entire package;“commercial activities in the telecommunications sector” means the provision of telecommunication services, the supply or export of telecommunication apparatus and the production or acquisition of telecommunication apparatus for supply or export;“Competition Act” means the Competition Act, 2003 (Act No. 2 of 2003);“Competition Commission” means the Namibian Competition Commission established by section 4 of the Competition Act;“concerted practice” means any form of coordination between licensees which involves direct or indirect contact or communication between licensees, the object or effect of which is either-(a)to influence the conduct of one or more licensees in a market; or(b)to disclose the course of conduct which a licensee has decided to adopt or is contemplating to adopt in a relevant market, in circumstances where such disclosure would not have been made under normal conditions of competition;“consumer” means a customer or a user;“cross subsidisation” means charging artificially low prices in a relevant market and subsidising those prices from high prices in a different market where there is less or no competition;“Determination of Licensees Holding a Dominant Position” means the Determination of Licensees Holding a Dominant Position in the Telecommunication Market in terms of Section 78(1) of the Act, published as General Notice No. 214 of 2016 in the Government Gazette No. 6054 of 28 June 2016;“dominant licensee” means a licensee determined to be dominant in a relevant market as contemplated in section 78 of the Act;“essential facility” means a facility associated with a telecommunications system or a telecommunications service that is supplied exclusively or predominantly by a single licensee or a limited number of licensees, and that cannot be easily substituted by other licensees for economic or technical reasons;“geographic market” means a geographic area in which licensees are involved in the supply and demand of the relevant products or services under similar or sufficiently homogeneous conditions of competition and that can be distinguished from neighbouring areas in which the prevailing conditions of competition are appreciably different;“horizontal agreement” means an agreement between competing licensees each of which operates at the same level in a relevant market;“infringement” means an infringement of any prohibition under the Act, these Regulations or the terms and conditions of a license;“Infrastructure-sharing Regulations” means the Regulations Prescribing Sharing of Infrastructure, 2016 (Regulations No. 400 of 4 October 2016);“licensee” means the holder of a telecommunications license;“market power” refers to the ability of a licensee or group of licensees to profitably raise and maintain a price for goods or services above the level that would prevail under competition;“merger” means the merger, acquisition, amalgamation, combination or joining of two or more licensees or part thereof into an existing licensee or to form a new licensee;“price” or “rate” includes any form of consideration given in return for any telecommunications service or goods or services used in conjunction with any telecommunication service, whether such consideration has actually been given or is advertised or stated as being required to be given in exchange for such services;“price squeeze” means increasing the price for provision of essential facilities required by competitors while charging relatively low price for retail services;“product or services market” comprises all those products or services which are regarded as interchangeable or substitutable by a consumer by reason of the services’ or products’ characteristics, their prices and their intended use;“relevant market” means any of the markets referred to in regulation 5, having been determined by the Authority with reference to a product or service market and a geographic market, taking into account the functional and temporal dimensions of the market;“supply” includes-(a)in relation to goods, the supply and resupply, by way of sale, exchange, lease, hire or hire-purchase of the goods; and(b)in relation to services, the provision by way of sale, grant or conferment of the services;“Tariff Regulations” means the Regulations Regarding the Submission of Interconnection Agreements and Tariffs, 2011 (Regulations No. 126 of 18 May 2011);“vertical agreement” means an agreement between licensees each of which operates at different levels in the same or in a related market, whether upstream or downstream in the production or distribution chain of a relevant market.2. Objects and application of regulations
3. Mandate of Authority in relation to competition
4. Submission of documents to the Authority
In these regulations, when persons are permitted or called upon to submit information to the Authority in writing, they may do so either physically or electronically-Part 2 – MARKET DEFINITION AND OBLIGATIONS OF LICENSEES
5. Markets in the telecommunications sector
6. Licensees holding a dominant position
The Authority has determined that-7. Obligations of licensees holding a dominant position
8. Obligations of all licensees to promote fair competition
9. Duty not to discriminate
Part 3 – RULES OF FAIR COMPETITION
10. Rules of fair competition
Part 4 – ANTI-COMPETITIVE PRACTICES
11. Assessing whether conduct is an anti-competitive practice
12. Anti-competitive behavior by licensees in general
13. Abuse of dominant position
Part 5 – ANTI-COMPETITIVE AGREEMENTS
14. Anti-competitive agreements
Part 6 – EXEMPTIONS
15. Exemptions
16. Types of exemptions
17. Notifications
Part 7 – ENFORCEMENT
18. Regulatory actions
19. Penalties
Part 8 – GENERAL
20. Accounts
21. Confidential information
If a person has designated information or documentation submitted to the Authority as confidential, the provisions of section 28 of the Act apply.22. Reconsideration
History of this document
14 May 2018 this version
Commenced