The relationship between telecommunications laws and competition policies can be depicted through the jurisdictional division of power between competition authorities and regulatory institutions. When there are separate entities enforcing telecommunications and competition rules, balancing the interplay and jurisdiction between these two entities is a key element in allowing the industry to expand. On the other hand, where a single entity exists (either a telecommunications regulator or a general competition authority), policies applicable to the telecommunications market should encourage growth and competition in the industry. Examples of different models adopted include:
- The most common scenario where countries have both a telecommunications regulator and one or more entities with jurisdiction over economy-wide competition matters (e.g., the United States, Chile, and South Africa); or a telecommunication regulator and a competition authority with a specific mandate over competition in the telecommunications sector (e.g., Australia);
- A model adopted in certain developing countries where there is no competition authority, but a sector-specific regulator with sector-specific competition mandates (e.g., Dominican Republic);
- The least common model adopted in New Zealand, where a sector-specific commissioner is part of the general, economy-wide competition authority.
The structure of competition policy and interplay between institutions is not necessarily pre-determined by the legal system in place. In some cases this may be the result of political and practical considerations such as management of existing human and financial resources, the development and size of the telecommunications market, and the level of competition that exists in the market. (See Table 3-4 for a list of certain countries with both a telecommunications regulatory body and a competition authority.)
Scenario 1 – Existence of Competition and Telecommunications Authorities
In the United States, the Federal Communications Commission (FCC) is the independent regulator in charge of overseeing interstate and international communications, but in matters involving competition issues, it must coordinate with the U.S. Department of Justice (DOJ) or the Federal Trade Commission (FTC) depending on the industries involved and the economic impact.1
The Communications Act of 1934 (as amended by the Telecommunications of 1996) establishes pro-competitive principles that govern the telecommunications industry in the United States and gives the FCC authority to review and approve (ex-ante) merger transactions involving licensed telecommunications carriers.2 The Communications Act requires the FCC to consult with DOJ prior to granting certain authorizations to local exchange carriers, and the antitrust law gives the FCC concurrent authority with DOJ to review mergers among telecommunications carriers.3 DOJ’s Antitrust Division and the FTC are primarily responsible for overseeing enforcement of U.S. antitrust laws (the Sherman Act and the Clayton Act).4 DOJ’s Antitrust Division has authority to prevent anticompetitive conduct (e.g., contracts, combinations and conspiracies in restraint of trade) that is subject to either criminal or civil action under U.S. antitrust laws and to review proposed mergers and acquisitions of telecommunications carriers (i.e., to assess their competitive effect and challenge those that threaten to harm competition).5 As a result, activities performed by telecommunications service providers in the United States are subject to the FCC’s regulatory enforcement under the Communications Act, as well as the DOJ’s enforcement under the antitrust laws. However, in a recent Supreme Court decision on whether a carrier’s breach of certain duties under the Communications Act also generated antitrust liability under the Sherman Act, the Supreme Court determined that such liability arises where a regulatory structure is already in place to prevent anticompetitive injury.
The FTC is responsible for preventing and penalizing unfair and deceptive market practices in restraint of trade.6 While the FTC does not have authority to review mergers involving the FCC-licensed telecommunications common carriers, it does have authority to review mergers of unregulated non-common carriers or mergers involving common carriers that reach a certain monetary threshold.7 Therefore, when a merger does not involve a telecommunications common carrier, in principle it may be reviewed by either the FTC or DOJ, as was the case of the merger of America Online (an Internet service provider) and Time Warner (a cable/media operator). The jurisdictional division among these three entities runs parallel and may often overlap. Rather than multiple agencies reviewing a transaction, the law requires one agency to give the other(s) investigative “clearance” to conduct the review. To avoid the overlap and duplicity of review between the FTC and DOJ, and the extensive delays in obtaining such clearance, in 2002, the two entities entered into a Memorandum of Agreement allocating areas of responsibilities in reviewing mergers and enforcing antitrust laws.8 As a result, the DOJ now is responsible for enforcing antitrust laws on telecommunications matters (See Box 3-8 for a snapshot of this tripartite review).
In reviewing mergers or other antitrust actions, the DOJ and FTC focus purely on competition issues, basing their decisions on whether a particular transaction will result in an accumulation of market power that would reduce competition and affect consumers.9 While the FCC also may engage in a competition analysis, it applies a broader sector-oriented analysis, focusing on whether the transfer would benefit or harm the public interest, convenience, and necessity.10 In some cases, the FCC may approve a merger, but may place conditions on the merger after consultations with the DOJ on competition issues.
Chile, like the United States, has a sector-specific regulator (SUBTEL) and a competition authority. However, the competition authority can intervene in telecommunications matters and apply competition law not only to private parties, but to the regulator itself.
SUBTEL, created in 1977 under the Ministry of Transportation and Telecommunication, is the entity responsible for overseeing the operations of telecommunications networks, and developing and enforcing technical industry standards.11 SUBTEL also is required to approve the transfer of any concession, authorization or permit.12 The Telecommunications Law of 1982 sets forth certain competition-related provisions applicable to the industry13 and operates in conjunction with Chile’s antitrust law (Decree 211), which generally prohibits activities that are a restraint to competition.14 Pursuant to Decree 211, the Tribunal for the Defense of Open Competition (Tribunal de Defensa de la Libre Competencia, the “Tribunal”) and the National Economic Prosecutor (Fiscalía Nacional Económica, the “NEP”) are the entities primarily responsible for the promotion and protection of competition in all markets.15
Unlike the United States, Chile’s antitrust law does not require the competition authorities to approve mergers and the Tribunal may not initiate antitrust investigations on its own. However, the Tribunal (at the complaint of interested parties) may prevent actions that can potentially harm competition. The NEP or any private party may file a claim with the Tribunal alleging that a party has engaged in actions that restrain competition and affect the public.16 Despite the lack of a requirement for authorization, in 2005 the Tribunal issued a pre-merger decision in one of the most significant acquisitions in the Latin American telecommunications market: the acquisition by Telefónica Móviles of BellSouth’s Latin American mobile business.
In this instance, Telefónica Móviles and BellSouth filed a motion with the Tribunal requesting that it expressly approve the acquisition in order to avoid potential post-merger litigation.17 After conducting cost and competition analyses, the Tribunal approved the merger with certain conditions (e.g., divestiture of a particular spectrum concession to avoid 100 per cent control of a particular band by the merged entity).18
The Tribunal has authority to order Chilean regulators, including the telecommunications regulator, to take certain actions where it identifies competition concerns,19 such as regulating prices for the telecommunications industry if they find that competitive conditions do not exist.20 Although SUBTEL and the Tribunal generally work well together, there have been instances where the Tribunal has imposed its authority on the regulator.
For example, in 2000, two mobile operators operating in the 800 MHz band petitioned for, and acquired, from SUBTEL additional spectrum in the 1900 MHz band (PCS). Another mobile operator filed a complaint with the NEP. The NEP, in turn, initiated a proceeding with the Antitrust Commission (currently the Tribunal). The Commission ordered SUBTEL to conduct a public spectrum auction without giving preferential treatment to the two mobile operators that had originally applied for the spectrum. Although a more transparent process was used to grant the right to additional spectrum, some argue that the case merely represents an effort to use the competition institution to delay the allocation of new spectrum. In addition, others believe that the competition authority became too involved in technical matters.21
In principle, the jurisdictional division of power between the telecommunications regulator and the competition authority in Chile appears to be clear, where intervention by SUBTEL is forward-looking and the competition authority is generally involved on a retrospective basis. However, the example of Telefónica Moviles and BellSouth above shows that companies may prefer to voluntarily submit themselves to the judgment of competition authorities for specific guidance in order to reduce uncertainty and post-acquisition problems.
In Europe, competition matters are divided between the respective competition authorities within the EC and the EU member states. There are two separate directorates within the EC that address competition and electronic communications matters: the Competition Directorate General (Competition DG), which has played a significant role in the development of EU telecommunications policy; and the Information Society and Media Directorate-General (DG InfoSoc), responsible for developing Information Society initiatives and harmonization efforts.22 There is no European-wide telecommunications regulatory authority.
The DG Competition Directorate is responsible for designing and enforcing general competition rules under the EU’s Community Treaties, and ensuring “that competition of the EU market is not distorted.”23 Its four main areas of action with respect to competition policy are antitrust and cartels, merger control, liberalization (i.e., introducing competition in monopolistic sectors), and state aid control (to ensure that competition in the Common Market is not distorted). At the EU level, the general competition rules are set forth in the EC Treaties, and pursuant to these, sector-specific competition rules are issued to govern certain sectors of economic relevance. For instance, member states are subject to the Directive on Competition Electronic Communications Markets,24 which prohibits them from establishing exclusive or special rights for the provision of electronic communications networks. This Directive also establishes the general competition principles applicable to the industry and requires the removal of competitive barriers for: (i) vertically integrated public undertakings; (ii) use of frequencies; (iii) satellites; and (iv) cable television networks. Member states are required to adopt the necessary measures to ensure compliance with this sector-specific competition directive.
Competition Matters – Relationship between the EC and NCAs
The EC has the authority to deal with competition matters on a community level, and national competition authorities (NCAs) are responsible for enforcing national competition laws. In some instances, EC authority may be shared with that of NCAs and in others, the EC may have exclusive authority (e.g., when certain practices may have impact on trade between member states or are deemed to be “Community dimension”).
The EC Treaty also established general competition rules that apply to all industries throughout the EU, and are enforced in coordination with the NRAs.25 Article 81 of the EC Treaty prohibits anticompetitive agreements (e.g., agreement between competitors and vertical agreements) that may have an effect on trade between member states and which prevent, restrict or distort competition in the common market. Exemptions may be granted if there are overriding countervailing benefits (e.g. improvement in efficiency or the promotion of research and development). Article 82 of the EC Treaty prohibits (without the possibility of exception) the abuse of a dominant position to the extent it may affect trade between member states. NCAs must apply articles 81 and 82 of the EU Treaty in individual cases, in cooperation with the EC and the other member states.26 In practice, there have been few cases in the telecommunications sector in which the EC has had to act under the provisions of articles 81 and 82.27 However, the EU’s merger control procedures are a useful example to illustrate the allocation of powers between the EC and NCAs.
In 2004, the EU adopted New Merger Control Regulations (NMCR)28 setting forth a referral system for the allocation of merger decisions between the EC and the NCAs, which complies with the subsidiarity principle set forth in Article 5 of the EU Treaty. According to the subsidiarity principle, unless the EC has exclusive authority to act, EC action is only permissible when the purpose of the proposed action will not be sufficiently achieved by the member states’ action (i.e., where the independent action by the member states’ institutions will not achieve such purpose effectively).29 Under the NMCR, the EC has exclusive jurisdiction over mergers of “Community dimension”, as a result of the transaction exceeding certain turnover thresholds. Mergers that do not meet that turnover should be reviewed by the NCAs, unless referred to the EC through the NMCR’s referral process.
EC dimension mergers are those where:
(i) the combined worldwide turnover of the undertakings concerned (i.e., the merging parties) is greater than €5 billion; and each of at least two of the undertakings concerned had a turnover within the EU of more than €250 million; or
(ii) the combined worldwide turnover of the undertakings concerned is greater than €2.5 billion; their combined turnover in each of at least three member states is greater than €100 million; in each of those three member states, the turnover of each of at least two of the undertakings concerned is €25 million; and the EU wide turnover of each of at least two of the undertakings concerned is greater than €100 million;
However if more than two-thirds of each of the merging parties’ EU turnover in either case is in one and the same EU member state, the merger must be examined by the NCA of that member state.
Cases also may be allocated to and from the EC and NCAs through a referral procedure that seeks to allocate the case to the best placed authority in a manner consistent with the subsidiarity principle. Where clearance is required in more than three jurisdictions it may be approved by the EC (provided such competition authorities do not object to such referral), in which case such approval would be valid EU-wide. Pursuant to Article 9 of the NMCR, at the request of a member state, the EC may refer a EC dimension transaction to such member state where the transaction (i) threatens to significantly hamper competition in a distinct market within that member state; or (ii) affects competition on a market within that member state, which presents all the characteristics of a distinct market and which does not constitute a substantial part of the common market.30 Article 22 of the NMCR allows the EC to accept a member state’s referral of a non-EC dimension referral where trade among member states may be affected.
The EC also has issued merger guidelines31 to provide companies instructions on when mergers are likely to be challenged or not, and a document on best practices on the conduct of EC merger control proceedings,32 which seeks to enhance the efficiency of investigations and to ensure transparency in the merger review process.
Role of the NRAs
Unlike the United States, in the EU, NRAs generally do not participate in merger reviews, as these are under the competence of the NCAs. However, in the EU, NRAs play an important role in enhancing competition in national telecommunications markets through sector-specific policies, as they are required to “promote competition in the provision of electronic communications networks, electronic communications and associated facilities and services.”33 NRAs may participate jointly with NCAs in assessing and ensuring competition in the communications market. As explained in Section 3.3.1 above, NRAs are required to consult with the EC prior to the adoption of measures following a determination of market power and the EC has the authority to require an NRA to withdraw a draft measure.
Given the increasingly competition-oriented regulatory approach of the EU model (see Section 3.3.1, above), there are some areas of overlap between regulatory policy (applied by the NRAs) and competition law (enforced by the NCAs). This has led some to debate over the future role and institutional structure of NRAs within a deregulatory framework in markets where full liberalization and competition exists. Although some have even suggested that NRAs potentially could be absorbed by competition authorities, this view is rejected as unsound regulatory practice.34 The importance of sector-specific regulation and enforcement remains relevant as NRAs are charged with achieving efficiency from a technical and allocation perspective (i.e., use of scarce resources), as well as ensuring competition and meeting universal service goals. Although NRAs apply certain aspects of competition law (as underlying principles of sector regulation), the interaction between the two enforcement authorities are considered an effective regulatory model.35
The South African Competition Act expressly recognizes the concurrent jurisdiction that may be exercised by the competition authorities and sector-specific regulators. The Independent Communications Authority of South Africa (ICASA), an independent body responsible for regulating the telecommunications and broadcasting industries, is also responsible for ensuring fair competition among industry players in these industries.36 The Competition Act, which was greatly influenced by developed country experience, establishes three entities responsible for economy-wide competition matters:
– an independent body responsible for the implementation of the Competition Act, (i.e.,
itinvestigates restrictive business practices and abuse of dominant positions and mergers);37
– an independent tribunal responsible for adjudication in the first-instance of contested competition matters (i.e.,
it determines whether anti-competitive practices have occurred, and if applicable, imposes sanctions under the Competition Act; it also reviews larger mergers when they have been referred to the consideration of the Tribunal and adjudicates appeals on decisions from the Competition Commission on intermediate mergers and Competition Act exemptions);38
Competition Appeal Court – has status equivalent to a high court and considers appeals from decisions rendered by the Competition Tribunal; also confirms orders by the Competition Tribunal on the divestiture of assets by parties who have merged in contravention of the Competition Act (The Competition Commission, the Competition Tribunal and the Competition Appeals Court are, for purposes of this section collectively referred to as the “Competition Authorities”).
The Competition Act expressly recognizes the possibility of the Competition Authorities and sector regulators (i.e., ICASA) to exercise concurrent jurisdiction over industry-specific competition matters, which to the “extent possible” should be managed pursuant to an agreement between the Competition Commission and the regulator for purposes of harmonizing their exercise of jurisdiction and ensuring a consistent application of the Competition Act.39 To this end, the Competition Commission and ICASA entered into a Memorandum of Agreement setting forth the manner in which they would operate when both have jurisdiction over the “investigation, evaluation and analysis of mergers and acquisition transactions and complaints involving telecommunications and broadcasting matters.”40 Although neither entity waived its respective authorities, they agreed on the establishment of a joint working committee to facilitate cooperation and consultation of matters that require their involvement.41
In the case of mergers that require the approval of the Competition Commission and ICASA, the Memorandum of Agreement recognizes that the entities may consult each other, but requires them to make independent determinations based on their respective legislations. In the event that each reaches different determinations, the Memorandum of Agreements sets forth a procedure by which both entities should try to reach the same decision on the merger. If either the Competition Commission or ICASA fails to approve the transaction, the merger may not go through.42 Decisions may be appealed to the relevant courts (i.e., the Competition Tribunal if appealing a decision of the Competition Commission; or the ordinary courts if appealing ICASA’s decision). In some cases however, even after bringing the matter before the court, companies have opted to settle given the court’s and the Competition Tribunal’s limited understanding of industry-specific matters and the length of time it takes a court to decide on these issues.43
India has a telecommunications regulator and an economy-wide competition authority. Enacted in 2003, India’s Competition Act is in its initial stages of development, with enforcement entrusted to the Competition Commission of India. The Competition Act generally prohibits anticompetitive agreements (i.e., one that is likely to cause an appreciable adverse effect on competition within India) and abuse of dominant position (i.e., where an enterprise directly or indirectly, imposes unfair or discriminatory conditions in the purchase and pricing conditions), and regulates corporate “combinations” through the acquisition of shares, control and mergers. The Competition Commission has an express mandate over competition issues with respect to a variety of services, including “communication” services.44
The Telecommunications Regulatory Authority of India (TRAI) is an autonomous body responsible for the regulation of telecommunications services in India. TRAI is responsible for “facilitate[ing] competition and enforce[ing] efficiency in the operation of telecommunications services” in order to facilitate growth.45 TRAI is also responsible for adjudicating disputes among service providers and between groups of licensees on matters concerning technical compatibility and interconnection between service providers, revenue sharing arrangements, quality of telecommunications services and interests of consumers. However, the TRAI Act specifically excludes from TRAI’s jurisdiction matters concerning “the monopolistic trade practice, restrictive trade practice and unfair trade practice.” If a matter is brought before TRAI that raises such competition issues, or any other issue under the jurisdiction of the Competition Act, TRAI is required to refer such issues to the Competition Authority.46
Table 3-5 below shows certain countries that have both a communications regulator and a competition authority, and the entity with jurisdiction over competition issues in the telecommunications sector.
Scenario 2 – Lack of Competition Authority, but Enforcement of Sector Specific Competition Rules by Telecommunications Regulator
Kingdom of Bahrain does not have a general competition law or economy-wide
competition authority. Instead, the Telecommunications
Law of 2002 tasks the Telecommunications Regulatory Authority (TRA) with promoting
effective and fair competition among new and existing licensed ICT operators
through the issuance of necessary regulations, orders and determinations.47 TRA’s authority under the Telecommunications
Law includes review and the imposition of sanctions for any conduct that
restricts or distorts competition in the ICT sector, including abuse of
dominant position or anti-competitive agreements. Additionally, the Law grants TRA the
authority to conduct reviews of proposed mergers or other changes to the market
structure that may restrict or distort competition.
2010, TRA issued Competition Guidelines that assist market participants to
understand how it will assess competition in the telecommunications sector,
including both ex ante market
reviews and ex post
investigations into anti-competitive behavior.48 Although the Competition Guidelines focus
mainly on abuse of dominant position, they also address collusion and
mergers. Under the Competition
Guidelines, the following types of behavior may raise abuse of dominant
position concerns that TRA could then investigate:
Excessive pricing – when prices
are set significantly and persistently above the competitive level;
Predatory pricing – when prices
are set anti-competitively below cost;
Margin squeezing – when a
vertically integrated operator sets the price of the retail and/or wholesale
product such that the margin between the two does not enable an efficient
competitor in the retail market to trade profitably;
Bundling or tying – when two or
more products are sold together in an anticompetitive manner;
Price or non-price discrimination
– when equivalent products are provided to different customers on different
terms in an anti-competitive manner;
On-net/off-net price discrimination – when the prices of on-net and
off-net calls diverge in an anti-competitive manner;
Refusal to supply – when a dominant vertically integrated operator’s
behavior unreasonably restricts competitors access to its network; and
Unduly long-term contracts – when retail service contracts are
Scenario 3 – The Case of New Zealand - Competition Authority Enforcing General Competition Policies and Sector-Specific Regulations
New Zealand introduced industry specific provisions, such as the regulation of interconnection and number portability, with the adoption of the Telecommunications Act in 2001, but the general competition statutes play an important complementary role, notably the Commerce Act of 1986, as amended, which prohibits anticompetitive practices (e.g., misuse of a dominant position) and business acquisitions that create or strengthen dominance.49
The Ministry of Economic Development (MED) advises the Minister of Communications on “the operation and regulation of specific markets and industries...including telecommunications.”50 The general, economy-wide competition authority is the Commerce Commission (Commission), which is an independent agency not subject to government direction.51 The Commission is responsible for enforcing competition legislation including the Telecommunications Act 2001.52 Within the Commission, primary responsibility for making decisions about, and providing advice to the Minister on telecommunications, rests with the Telecommunications Commissioner.
The jurisdictional division of power between these two agencies with respect to telecommunications matters is clearly defined in New Zealand’s legislation, and is evidenced in rulemaking proceedings. An interplay between MED and the Commission recently took place in connection with the Commission’s proposal regarding the regulation of mobile termination rates. Under the Telecommunications Act, the Commission is responsible for conducting “investigations into the desirability of regulating additional services or amending the regulation of services where considered necessary, and make recommendations to the Minister of Communications.”53 In 2004, as a result of complaints of high mobile termination rates and lack of competition in New Zealand’s mobile termination market, the Commission initiated an investigation to determine whether to regulate the mobile termination market. In June 2005, the Commission issued a report to the Minister of Communications recommending the regulation of fixed-to-mobile termination rates (excluding 3G networks).54
Under the Telecommunications Act 2001, the Minister of Communications has the ultimate authority to accept or reject the Commission’s recommendations, or to require the Commission to reconsider its recommendation “for any reason specified by the Minister.”55 However, the Minister of Communications cannot reject the Commission’s recommendation and substitute his own preferred outcome – if he rejects the Commission’s recommendation, then the regulatory status quo prevails. As a result of this authority and despite supporting a reduction of mobile termination rates, the Minister of Communications required the Commission to reconsider its recommendation, particularly on aspects of implementation and achieving benefits to end-users.56
As of the date of this publication, New Zealand’s mobile termination proceeding has not concluded, but it serves to highlight the interplay between the relevant agencies. Worth noting is the broad authority of the Minister of Communications with respect to the recommendations of the Commission, which may be subject to reconsideration for reasons not specifically set forth in the Telecommunications Act or the Commerce Act.
New Zealand’s approach has not been emulated in other countries, and there are no indications that this approach would lead to higher levels of competition than that achieved by countries with sector-specific regulation.57 Furthermore, this approach is unlikely to be successful in developing countries that lack expertise in the enforcement of generic competition laws.
1 See Communications Act of 1934 § 2(a), 47 U.S.C § 152(a) (2000); and Clayton Act § 11(a), 15 U.S.C. § 21(2000).
2 Communications Act, 47 U.S.C. §§ 214, 310(d), 25.229, and 34-39. FCC approval is required for the transfer of licences and authorizations concerning common carriers, public and private radio, satellite earth stations, and submarine cable landings.
3 Section 271 of the Communications Act (as amended) requires the FCC to consult with DOJ; Clayton Act 15 U.S.C. §21(a); See also, Clayton Act 15 U.S.C. §§ 7 and 11, which allow FCC to block acquisition of certain common carriers where such acquisition would result in a lessening of competition or a creation of a monopoly.
4 The Sherman Antitrust Act and Clayton Act generally prohibit conspiracies in restraint of trade, monopolization and anticompetitive mergers. Specifically, Section 1 of the Sherman Antitrust Act (15 U.S.C. § 1) prohibits every “contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade.” Section 7 of the Clayton Act (15 U.S.C. § 18) prohibits mergers where the effect may be “substantially to lessen competition, or to tend to create a monopoly.”
5 Clayton Act.
7 Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C §18a, requires parties to a merger to submit a pre-merger filing to the FTC and DOJ depending on the size of the parties and the size of the transaction, and to observe a 30-day waiting period before closing the transaction. A filing under the Hart-Scott-Rodino Act is required if: (i) the transaction is valued at more than $212.3 million; (ii) the transaction is in excess of excess of $53.1 million but less than $212.3 million, where the acquiring or acquired person has annual net sales or total assets of $106.2 million or more and the other party has annual net sales or total assets of $10.7 million.
8 See Memorandum of Agreement between the Federal Trade Commission and the Antitrust Division of the United States Department of Justice Concerning Clearance Procedures for Investigations, 5 March 2002, available athttp://www.ftc.gov/opa/2002/02/clearance/ftcdojagree.pdf.
9 See 1992 Horizontal Merger Guidelines, U.S. Department of Justice and Federal Trade Commission (revised April 8, 1997), available athttp://www.ftc.gov/bc/docs/horizmer.htm.
10 See Comments of FCC General Counsel Christopher J. Wright, Introducing the Transactions Team Presentation on Timely Consideration of the Applications Accompanying Mergers, 1 March 2000 (where the General Counsel lists the following four-pronged public interest standard used in considering merger: (i) whether the transfer would violate the statute; (ii) whether the transfer would violate regulation; (iii) whether the transfer would frustrate the purpose of the Communications Act or a regulation; and (iv) whether the transfer is likely to provide affirmative public benefits), at http://www.fcc.gov/Speeches/misc/statements/wright030100.html.
11 Decreto Nº 1762, 1977.
12 Ley General de Telecomunicaciones 1982. See Article 21, available at http://www.subtel.cl/prontus_subtel/site/artic/20061229/asocfile/20061229125842/titulo_ii.PDF.
13 Ley General de Telecomunicaciones 1982. See articles 8, 12 and 24, available at http://www.subtel.cl/prontus_subtel/site/artic/20061229/asocfile/20061229125842/titulo_ii.PDF and http://www.subtel.cl/prontus_subtel/site/artic/20061229/asocfile/20061229125842/titulo_iii.PDF.
14 Texto Refundido, Coordinado y Sistematizado del Decreto Ley No. 211 del 1973; D.F.L. Num. 1, Santiago, Chile 18 October 2004, available at http://www.tdlc.cl/institucional/DL211_refundido.pdf.
15 Chile, Decreto Ley No. 211 of 1973, Article 2.
16 Texto Refundido, Coordinado y Sistematizado del Decreto Ley No. 211 del 1973; D.F.L. Num. 1, (Chile), 18 October 2004, at Article 18.
17 See Resolution No. 2 dated 4 January 2005. Procedimiento No Contencioso Operación de Concentración Entre Empresas; Telefónica Móviles – BellSouth, Rol, No. 01-04, (Chile) (stating in the first “whereas” clause that Telefónica Móviles, S.A. had submitted the Stock Purchase Agreement with BellSouth Corporation requesting that the Tribunal determine whether or not it infringed the provisions of Decree 211).
18 Id. The Tribunal’s decision was appealed by Telmex Chile Long Distance S.A. before the Supreme Court of Chile, which reaffirmed the decision of the Tribunal on 15 July 2005. See Corte Suprema, Resolución Recurso 396/2005 – Resolución 14631 – Secretaria: Unica, available at http://mail.fne.cl/db/tabla.nsf/WCSSentencias/1DB38DB90E831F0B8425726F00574C96?OpenDocument.
19 Chile, Decreto Ley No. 211 of 1973.
20 OECD, Inter-American Development Bank, Competition Law and Policy in Chile: A Peer Review, January 2004, Section 5.1.
21 OECD, Global Forum on Competition, The Relationship Between Competition Authorities and Sectoral Regulators, Contribution from Chile, DAF/COMP/GF/WD/(2005)4 , 12 January 2005, at par. 13 [hereinafter OECD Global Forum on Competition 2005]. See also OECD, Inter-American Development Bank, Competition Law and Policy in Chile: A Peer Review, January 2004, Section 5.1.
22 See Europe’s Information Society, Regulation of the Information Society Sector, Information Society Policies at a Glance, at http://www.europa.eu.int/information_society/policy/index_en.htm.
24 Commission Directive 2002/77/EC of September 16, 2002, on competition in the markets for electronic communications networks and services. Official Journal of the European Communities, L249/21.
25 Consolidated Version of The Treaty Establishing The European Community, Articles 81 and 82, Official Journal of the European Communities C 325/33, at Http://Europa.Eu.Int/Eur-Lex/Lex/En/Treaties/Index.Htm.
26 Council Regulation 1/2003, OJ L 1, 14.01.2003, Article 5 (power of national competition authorities), Article 11 (cooperation between the Commission and the national competition authorities).
27 Edward Pitt, Competition Law in Telecommunications, Section 8.7 “Procedures for Enforcement of the Competition Rules”, in Telecommunications Law and Regulation (Ian Walden and John Angel eds.) 2005.
28 See Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation).
29 Article 5 EU Treaty. The subsidiarity principle, is essentially a principle of national autonomy.
30 EC Merger Regulation, Article 9.
31 Merger Guidelines available at http://europa.eu.int/comm/competition/mergers/legislation/regulation/best_practices.pdf.
32 Best Practices, available at http://europa.eu.int/comm/competition/mergers/legislation/regulation/best_practices.pdf.
33 Framework Directive Article 8(2).
34 Christina Spyrelli, Regulating the Regulators? An Assessment of Institutional Structures and Procedural Rules of National Regulatory Authorities, International Journal of Communications Law and Policy, Issue 8, Winter 2003/2004, at 50 – 51.
35 Id. at 51.
36 Independent Communications Authority of South Africa Act No.13 of 2000.
37 Republic of South Africa, Competition Act, as amended, Chapter 4, Part A, a http://www.compcom.co.za/.
38 Republic of South Africa, Competition Act, as amended, Chapter 4, Part B, a http://www.comptrib.co.za; for the Tribunal’s merger review process, see http://www.comptrib.co.za/legislation/ICN%20Merger%20Template%20-%20South%20Africa.pdf.
39 Republic of South Africa, Competition Act, as amended, Section 21(h), Section 3(1A)(b) and 82(1), (2) and (3) and Chapter 4, Part A, at
40 Memorandum of Agreement entered into between the Competition Commission and the Independent Communications Authority of South Africa, dated 16 September 2002.
42 Memorandum of Agreement entered into between the Competition Commission and the Independent Communications Authority of South Africa, dated 16 September 2002, at Article 2.3.4.
43 Africa, Network for Capacity Building and Knowledge Exchange in ICT Policy, Regulation and Applications, Chapter 4: Module 3: The Role of Regulation in Competition: Regulatory Intervention in the ICT Sector, at 34 (citing the example of the dispute between NextCom and Cell C over the issuance of a third cellular licence in South Africa, where after several court hearings the parties reached an out-of-court settlement).
44 India, Competition Act 2002 No. 12, PAUSA 24, 1924, 14 January 2003, Chapter 1, Article 2, (establishing that the Competition Act is applicable to "services", defined as service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as [...] communication.”) See http://www.competition-commission-india.nic.in).
45 The Telecom Regulatory Authority of India Act, 1997, No. 24 of 1997, Registered No. DL-33004/97, Chapter III, Article 11.1.h , available at http://www.trai.gov.in.
46 India, Competition Act 2002 No. 12, PAUSA 24, 1924, 14 January 2003, Article 21 (establishing that “where in the course of a proceeding before any statutory authority an issue is raised by any party that any decision which such statutory authority has taken or proposes to take is or would be, contrary to any of the provisions of this Act, then such statutory authority may make a reference in respect of such issue to the Commission.”) Pursuant to Article 2(w) a "statutory authority" is any authority, board, corporation, other body corporate, established by or under any Central, purposes of regulating production or supply of goods or provision thereof or any matter connected therewith or incidental thereto.”
47 Bahrain TRA, Telecommunications
Law of 2002, Legislative Decree No. 48 of 2002 at
48 Bahrain TRA, Competition
Guidelines (Feb. 10, 2010) at
http://www.tra.org.bh/en/pdf/CompetitionGuidelines.pdf. 49New Zealand, Commerce
Act 1986 (as amended by the Commerce Amendment Act 1990).
50 See http://www.med.govt.nz/about/index.html. Other industries include energy,
intellectual property, tourism, economic development, broadcasting and
51 New Zealand Commerce Act 1986,
id. The Commission also enforces the Commerce Act 1986, the Fair
Trading Act 1986, the Electricity Industry Reform Act 1998, the Dairy Industry
Restructuring Act 2001 and the Credit Contracts and Consumer Finance Act 2003.
53 See http://www.comcom.govt.nz/IndustryRegulation/Telecommunications/Overview.aspx.
See also New Zealand, Telecommunications Act 2001, at Schedule 3 (Procedure for
Altering Regulated Services), available
at http://www.legislation.govt.nz/browse_vw.asp?content-set=pal_statutes. Other Commission duties set forth under the
Telecommunications Act include: "(i) making determinations on disputes
over access [to certain designated services]; (ii) making determinations on
disputes over [access prices]; (iii) conducting pricing reviews of its
determinations for designated access services if requested to do so by a party
to a particular determination; (iv) undertaking costing and monitoring
activities relating to the Telecommunications Service Obligations and
determines how these costs will be allocated to other industry players; and (v)
deciding whether to approve telecommunications access codes which have been
submitted to the Commission by the Telecommunications Industry Forum.” (Id.)
54 New Zealand Communications
Act 2001: Schedule 3 Investigation into Regulation of Mobile Termination,
Final Report, June 9, 2005, available at
55 New Zealand Telecommunications Act
2001, Schedule 3, Clause 6(b) and Clause 13.
56 Letter issued by Hon David
Cunliffe, Minister of Communications to Douglas Webb Telecommunications
Commissioner, dated 9 August 2005, available at
57 Ann Buckingham and Mark Williams, Designing Regulatory Frameworks for
Developing Countries, in Telecommunications Law and Regulation (Ian
Walden and John Angel eds., 2005), Section 15.2.3, at 649.