acquisition is likely to have the effect of substantially lessening competition in a
market for Telecommunications Services.
2)
Where the Authority decides to initiate a regulatory proceeding for any of the three
cases presented in Sub‐Article 1 of this Article, it shall do so in accordance with the
procedure established in Articles 34 and 36 through 38 of the Proclamation, and
this Directive.
7. Market Definition in a Market Review
1) The Authority shall endeavor to perform a Market Review every three (3) years to
define markets susceptible to regulation, and designate operators as having SMP in
those markets, if applicable.
2) The purpose of a Market Review shall not be to define all telecommunications
markets. Instead, the Market Review shall define only markets that shall be
susceptible to regulation.
3) The following three-criteria test shall be applied to identify a market susceptible to
ex ante regulation.
a) There are high and non‐transitory barriers to entry or expansion;
b) The market structure does not tend towards effective competition within a
relevant time horizon; and,
c) The application of competition law alone would not adequately address the
market failure concerned.
4) The Authority shall use a forward‐looking or prospective approach, to define these
markets. A prospective approach involves assessing the market dynamics and
attempting to anticipate the nature of competition in the near to medium term.
8. Market Definition as Part of an Investigation Into Alleged Anti‐Competitive
Practices
When investigating allegations of anti‐competitive practices, the Authority shall define a
relevant market using a backward‐looking or retrospective approach. A retrospective
approach considers a period of time equivalent to the period of the alleged misconduct.
9. Market Definition as Part of a Review of a Mergers and Acquisitions Notification
The Authority may define a relevant market as part of a review of a Mergers and
Acquisitions Notification. In that case, the Authority shall use a prospective approach,
but considering the change in market structure or concentration, that would result with
the proposed merger or acquisition.
PART FOUR
GENERAL APPROACH TO DEFINE RELEVANT MARKETS
10. The Relevant Product Market
1)
When defining a relevant market, the Authority shall include all services that are
considered to be close substitutes, regardless of the underlying technology used to
provide it. These services compete directly with each other, so that, the potential
demand ‐ or supply‐side substitution between them will constrain their prices.
6
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