STAATSKOERANT, 24 JANUARIE 2014 No. 37261 5.2.4.1 Regulation issues affecting competition The Independent Communications Authority is currently able to impose regulations affecting the following activities and issues: 5.2A.1.1 Interconnection The Authority prescribes regulations to facilitate the conclusion of interconnection agreements that allow different operators to connect their networks. The regulations and interconnection principles contain model terms and conditions including timeframes and procedures for agreements. Subject to these regulations any person licensed can, on request, interconnect to any person providing a service in terms of the Electronic Communications Act. Interconnection agreements must be filed with the regulator. In addition, ICASA regulates carrier pre-selection that enables subscribers of one service to be able to switch services and use any other provider. The Regulator has developed regulations consistent with the provisions of the Act. Amongst other things, the regulations deal with the requirement on operators to publish interconnection offers, including the location of interconnect facilities, capacity of the facilities, and prices charged. This is to ensure that everyone knows of the interconnection opportunities. The regulations are geared towards transparency in the interconnection engagements of different competitors. The current regulations do not deal with the prices charged and the terms of financial arrangements between parties. Parties are only required to notify the Authority and file the agreements, without the Authority dealing with the terms of the agreements. The bigger operators still have price-setting potential over the smaller competitors who seek to interconnect as the only way of survival. While interconnection regulations are important and have the potential to level the playing fields, they are constrained by what the regulator can or cannot do to regulate the financial arrangements between the parties entering into connection agreements. Interconnection regulations cannot be enough without the full implementation of the competition sections of the Electronic Communications Act, which can impose pro-competitive remedies in case of unfair discrimination or abuse of dominance. 5.2.4.1.2 Electronic Communications Facilities Leasing The Authority prescribes regulations to facilitate the conclusion of facilities leasing agreements between different operators. The regulations cover both the essential and basic facilities. The regulations disallow any preferential or exclusive arrangements and provides for measures to deal with undue delays in entering into facilities leasing agreements. The facilities leasing regulations may exempt operators without Significant Market Power from the requirement to enter into facility leasing agreements. For purposes of promoting new investments in broadband fibre networks, the Authority may exempt even operators with Significant Market Power (SMP) from the requirements to lease fibre loops and sub-loops serving residential premises, if they meet certain conditions. These conditions extend exemptions to facilities that were built after the Act came into effect, facilities that serve areas that were not served prior to construction, or are in an area where the new facilities are constructed to compete with an incumbent operator. The Authority may prescribe regulations for wholesale rates for facilities leasing. 35 This gazette is also available free online at www.gpwonline.co.za 39