The Internet Service Providers’ Association (Ispa) on Friday welcomed a supreme court of appeal decision to set aside a decision on the referral of a complaint against Telkom to the Competition Tribunal.
Ispa said in a statement the decision paved the way for the Competition Tribunal to finally examine Telkom’s conduct in the Internet services market during the early part of the decade. “It also sets important precedent regarding the jurisdiction of the Competition Commission over the communications sector.”
The supreme court upheld an appeal by the Competition Commission against a decision of the high court in Pretoria to review and set aside its decision to refer certain complaints of anti-competitive conduct by Telkom to the Competition Tribunal.
The court held that there was no reason to suggest that the referral was vitiated by bias or prejudice, rendering it unlawful.
It found the commission made the complaint referral within the time periods provided for in the Competition Act 89 of 1998 and acted in accordance with the memorandum of agreement concluded between the Commission and the Independent Communications Authority of SA (Icasa).
The court held that the Commission had the jurisdiction to refer the complaint and the Tribunal the competence to adjudicate on it.
Telkom had previously argued that because the Icasa regulated the communications sector, the Competition Commission did not also have jurisdiction over this sector.
Ispa said the decision of the supreme court made it clear that Icasa and the commission had concurrent jurisdiction and that the tribunal had the competence to adjudicate on competition issues in the communications sector.
The matter has its origins in role players in the communication industry complaining that Telkom was abusing it monopolistic role in the industry. Telkom apparently refused to provide telecommunications facilities to value added network service providers unless they concluded a standard form contact with Telkom.
It was reported that an administrative penalty of 10% on Telkom’s annual turnover was suggested as a fine.
Responding spokesman Anton Klopper said Telkom noted the decision of the supreme court of appeal and that it was currently studying the reasons for the court’s judgment. — Sapa