The Independent Communications Authority of South Africa (ICASA) has amended the Electronic Communications Act to prevent market power abuse in the mobile retail sector. This significant regulatory change targets mobile network operators (MNOs) with substantial market influence, such as MTN and Vodacom, mandating them to provide ICASA with all confidential accounts, records, and other pertinent documents related to their operations.
The amendments reflect ICASA’s ongoing efforts to foster a competitive and fair mobile retail market while addressing the concerns of different stakeholders, aiming to enhance regulatory oversight without imposing unnecessary transparency requirements that could compromise business confidentiality.
The amendments were announced in a government gazette on Friday, 5 July 2024, following written submissions from key industry players, including MTN, Vodacom, Telkom, Cell C, and the Internet Service Providers Association (ISPA). “These regulations are called the Mobile Broadband Services Amendment Regulations 2024 and will come into force upon publication in the Government Gazette,” ICASA stated.
Initially, regulations published on 31 March 2022 required operators with significant market power (SMP) to publish reports on retail prices for end-users, data revenue, retail tariffs, and wholesale prices for mobile virtual network operators (MVNOs) and access point names (APNs) on their websites, despite confidentiality concerns. However, the latest amendments have removed this requirement.
Under the new regulations, MNOs with SMP no longer have to publish confidential information on their websites. They are, however, still obligated to publicly share non-confidential reports and submit confidential ones to ICASA on a quarterly basis. This change reflects ICASA’s balance between transparency and the protection of sensitive business information.
The removal of the publication requirement was supported by MTN, Telkom, Vodacom, and the ISPA, while Cell C opposed the change. Despite the differing opinions, ICASA used its regulatory authority to eliminate the regulation, explaining, “The Authority reiterates its position to delete regulation 7(e), given that it did not find a licensee with significant market power in the APN and MVNO service markets.”
Another proposed amendment involved removing clauses 7(f) and 7(g), which pertained to regulating wholesale prices for MVNOs and APNs. Clause 7(f) required operators to explain and provide evidence if any retail price was below the wholesale price. Clause 7(g) mandated ICASA to monitor retail and wholesale prices for margin squeeze issues.
MTN and Vodacom backed the proposal to remove these clauses, citing the need for regulatory simplification. However, Cell C, ISPA, and Telkom opposed the removal for various reasons. Ultimately, ICASA decided to retain regulation 7(f) and delete section 7(g), maintaining some oversight on pricing practices while easing other regulatory burdens.