DE­FEATIST ACT

Nairobi Law Monthly - - Contents - S HADRACK MUYESU

Amended KICA Act gives un­fet­tered pow­ers to the cab­i­net sec­re­tary, seen as the epit­ome of in­tru­sion. Those who are for the law ar­gue that it opens new, pre­vi­ously un­fath­omable fron­tiers in re­gard to the ex­er­cise of over­sight and man­age­ment over a pre­vi­ously chaotic regime. The scep­tics ar­gue that not only do the laws fail the con­sti­tu­tion­al­ity test, they are also in­her­ently ir­ra­tional and am­bigu­ous.

Most re­cently, the stand­out event in the never end­ing cir­cus that is Kenya’s pol­i­tics has been the sign­ing into law of the Statute Law (Mis­cel­la­neous Amend­ment) Act of 2015.

The new law has stirred a sand­storm. On one hand, govern­ment’s political bat­tal­ions have hailed the im­mac­u­late­ness of the new law; on the other, the ma­jor

Grant­ing the Pres­i­dent and CS mas­sive unchecked pow­ers, and lim­it­ing the scope of the CA, the amend­ment is per­fect tes­ti­mony of State in­tru­sion and ma­nip­u­la­tion

play­ers in the tele­coms sec­tor are cry­ing foul. Those who are for the law ar­gue that the new laws open new, pre­vi­ously un­fath­omable fron­tiers with re­gard to the ex­er­cise of over­sight and man­age­ment over a pre­vi­ously chaotic regime. The scep­tics, on the other hand, ar­gue that not only do the laws fail the con­sti­tu­tion­al­ity test, they are also in­her­ently ir­ra­tional and am­bigu­ous. Most cu­ri­ously, some also ob­serve mala fides on the part of the govern­ment – pre­sum­ably, the chief ar­chi­tect of th­ese laws.

How­ever, be­fore any ex­plo­ration of the law can be em­barked, a few im­por­tant points have to be made. Fore­most is

the ob­ser­va­tion that the prin­ci­pal act, the In­for­ma­tion and Com­mu­ni­ca­tions Act Cap 411A of 1998, re­mains in force. What was re­cently as­sented to was the Statue Law (mis­cel­la­neous amend­ment) Act of 2015 which bore pro­vi­sions af­fect­ing the prin­ci­pal act. This was the lat­est in a raft of changes that have been oc­ca­sioned upon the 1998 law. Be­fore the Statute Law (Mis­cel­la­neous Amend­ment) Act was the In­for­ma­tion and Com­mu­ni­ca­tions (Amend­ment) Act of 2009 with sub­se­quent changes be­ing the In­for­ma­tion and Com­mu­ni­ca­tions (Amend­ment) Act of 2013.

The Good

What the Statute Law did was to re­align ter­mi­nolo­gies un­der the prin­ci­pal Act to fit the bill of the Con­sti­tu­tion of Kenya 2010 and the 2013 Act. Most im­por­tantly how­ever, the Statute Law Act gave the Com­mu­ni­ca­tions Au­thor­ity new pow­ers to de­velop stan­dards, ad­min­is­ter con­tent and reg­u­late as well as mon­i­tor com­pli­ance stan­dards in the me­dia in­dus­try. It also el­e­vated the mar­ket dom­i­nance thresh­old to 50 per cent of the to­tal mar­ket share from the 25 per cent that had been the ba­sis of the dom­i­nance prin­ci­ple un­der the prin­ci­pal act. The 25 per cent thresh­old was seen to be a self de­feat­ing regulation since at 25 per cent of mar­ket share for in­di­vid­ual prod­ucts, vir­tu­ally all the large play­ers in the voice, money trans­fer and data ser­vices sec­tors would have found them­selves de­clared dom­i­nant. The new law also sought to har­monise reg­u­la­tions as con­tra­dict­ing laws un­der the pre­vi­ous regime had made it dif­fi­cult for the Com­mu­ni­ca­tions Au­thor­ity to mon­i­tor and curb dom­i­nance. The new amend­ments aligned the pro­vi­sions of the prin­ci­pal act as re­gards dom­i­nance to those of the Com­pe­ti­tions Act. The key bene­fac­tor of this har­mon­i­sa­tion has been the Com­mu­ni­ca­tions Au­thor­ity which has ac­quired fresh mus­cle to mon­i­tor dom­i­nance. Prior to th­ese amend­ments, both the Com­mu­ni­ca­tions Au­thor­ity and the Com­pe­ti­tions Au­thor­ity had claimed ju­ris­dic­tion over mon­i­tor­ing and regulation of dom­i­nance based on the con­flict­ing pro­vi­sions of their in­form­ing statutes. Pro­po­nents also ar­gue that the in­tro­duc­tion of new rules to gov­ern SIM reg­is­tra­tion is also mas­sive step for­ward con­sid­er­ing that we live in the “age of ter­ror­ism”. The only prob­lem with this step for­ward, how­ever, is the fail­ure of the act to of­fer proper mon­i­tor­ing guide­lines to sup­port en­force­ment.

In ex­ten­sion, the new amend­ments also in­tro­duced new ram­i­fi­ca­tions for en­ti­ties in con­tin­u­ous breach of dom­i­nance reg­u­la­tions. Un­der the new laws, a li­censee act­ing in breach will be re­quired to pay a fine not ex­ceed­ing 10 per cent of its gross turnover of the pre­ced­ing year. This amount is to be paid for each year that the breach per­sists. This is an im­prove­ment from the one-off fine con­tem­plated pre­vi­ously that proved in­ef­fec­tive in cur­tail­ing anti-com­pet­i­tive be­hav­iour. The amend­ments have also given the Com­mu­ni­ca­tions Au­thor­ity new pow­ers to of­fer any other law­ful rem­edy for breach. As long as this power is not abused, the au­thor­ity will en­joy the right to ap­ply reme­dies de­pend­ing on the sit­u­a­tion. Ac­cord­ing to the pro­po­nents, this presents a wel­come change from the pre­vi­ous regime of rigid ap­pli­ca­tion of norms.

Mis­cel­la­neous amend­ments

That the new laws came cour­tesy of a mis­cel­la­neous amend­ment how­ever leaves a bit­ter taste in the mouth. The na­ture of a Statute Law is that it is used to cor­rect any anom­alies within the prin­ci­pal law or a bill in­tended for Pres­i­den­tial assent. The afore­men­tioned anom­alies are nor­mally mi­nor changes which do not af­fect the gist of the bill. They in­clude, but are not lim­ited to, out­dated ter­mi­nolo­gies, mi­nor amend­ments or other mi­nor er­rors and, as such, do not re­quire pub­lic in­put. This process of amend­ment, whilst well in­ten­tioned, has been thor­oughly abused of late with core amend­ments that would oth­er­wise re­quire the in­put of the pub­lic and other rel­e­vant stake­hold­ers be­ing in­tro­duced with­out such par­tic­i­pa­tion. The dom­i­nance thresh­old is such an ex­am­ple which but­tresses the ag­grieved tele­coms’ com­plaints and in­deed, the rest of the play­ers.

Un­con­sti­tu­tion­al­ity

Crit­ics ar­gue that the new laws war­rant un­nec­es­sary in­ter­fer­ence by the Govern­ment. I couldn’t agree more. Sec­tion 7 of the In­for­ma­tion and Com­mu­ni­ca­tions (amend­ment) Act of 2013 grants mam­moth pow­ers to the Cab­i­net Sec­re­tary and in­deed the Pres­i­dent with re­gard to the ap­point­ment of the chair­per­son and mem­bers of the Reg­u­la­tory Au­thor­ity Board, and is per­fect tes­ti­mony of this in­tru­sion. Sec­tion 7 con­tem­plates a Se­lec­tion Com­mit­tee whose pur­pose shall be to in­ter­view per­sons who shall sit on the Man­age­ment Board of the Com­mu­ni­ca­tions Au­thor­ity.

This Se­lec­tion Com­mit­tee shall, upon the con­duct of such in­ter­view, nom­i­nate three per­sons from amongst whom the chair­per­son of the board shall be picked by ei­ther the Pres­i­dent or the rel­e­vant CS. Such dis­cre­tion is ex­tended to the se­lec­tion of the mem­bers of the com­mit­tee to the board with two per­sons be­ing

nom­i­nated in re­la­tion to each va­cancy for the lat­ter case. Such un­fet­ter­ing dis­cre­tion al­lows the Pres­i­dent or the CS (as the sit­u­a­tion may al­low) to not only pick a lesser qual­i­fied can­di­date but worse, to pick a govern­ment friendly can­di­date.

It shouldn’t es­cape no­tice that the mem­bers of the afore­men­tioned Se­lect Com­mit­tee are as picked by the Pres­i­dent or the CS as Sec­tion 6B (1) (b) of the 2013 act in­forms. The cre­ation of the Com­mu­ni­ca­tions and Mul­ti­me­dia Ap­peals Tri­bunal per sec­tion 102 of the 2013 act also falls prey to th­ese ex­tended pres­i­den­tial and min­is­te­rial pow­ers.

Stun­ningly, Sec­tion 102 also in­tro­duces new pow­ers on the ac­cord of the CS to, through no­tice, re­ject nom­i­nees for­warded to him by the Se­lec­tion Panel for pur­poses of ap­point­ment to the tri­bunal. In lieu of any re­jec­tion, sub­sec­tion 11 de­mands a re­peat of the en­tire se­lec­tion process but with “nec­es­sary mod­i­fi­ca­tions” that can only be car­ried out by the CS. The CS is also al­lowed to ex­tend the se­lec­tion pe­riod by a pe­riod not ex­ceed­ing a fur­ther 14 days.

The pow­ers of the CS and/or the Pres­i­dent ac­cord­ing to Sec­tion 102 above may be dis­missed as non-pow­ers re­ally. Make no mis­take how­ever; the struc­tur­ing of Sec­tion 102 al­lows the Pres­i­dent or his CS power over the en­tire regime of dis­pute res­o­lu­tion un­der the prin­ci­pal act. While this sec­tion con­tem­plates dis­pute res­o­lu­tion by the Me­dia Coun­cil or a rel­e­vant body set up for such pur­poses by the Com­mu­ni­ca­tions Au­thor­ity, Parts A and B of the sec­tion go be­yond the ex­pected ap­pel­late ju­ris­dic­tion of the Ap­peals Tri­bunal to grant it orig­i­nal ju­ris­dic­tion to hear dis­putes at the in­stance of the com­plain­ing party, the me­dia coun­cil or the body ex­ist­ing for dis­pute res­o­lu­tion un­der the Com­mu­ni­ca­tions Au­thor­ity. The na­ture of the griev­ances out­lined un­der Sec­tion 102 (A) (1) mean that the tri­bunal com­fort­ably as­sumes all dis­pute res­o­lu­tion func­tions re­lat­ing to me­dia en­ter­prises at the ex­pense of the other, more in­de­pen­dent bod­ies, cre­ated for such pur­poses. This is the body that CS/ Pres­i­dent has con­trol over!

Sec­tion 5C also al­lows the CS to is­sue pol­icy guide­lines of a gen­eral na­ture to the Com­mu­ni­ca­tions Au­thor­ity re­gard­ing the pro­vi­sions of the Act. Such reg­u­la­tions be­come an of­fi­cial min­is­te­rial di­rec­tive and there­fore bind­ing upon the au­thor­ity once they are pub­lished in the Gazette as sub­sec­tion 2 di­rects. What is “guide­lines of a gen­eral na­ture” re­mains a sub­ject of wide in­ter­pre­ta­tion. Equally cu­ri­ous is the ex­tent of the ap­pli­ca­tion of th­ese pow­ers – they are ap­plied orig­i­nally, solely and at the dis­cre­tion of the CS to af­fect ANY pro­vi­sion of the Act! What would hap­pen if a “cre­ative” CS were to get “cre­ative” in the ap­pli­ca­tion of this sec­tion?

In a com­mend­ably sub­tle man­ner, the Statute Law (mis­cel­la­neous amend­ment) Act of 2015 fur­ther ex­tends the CS’S un­fet­tered dis­cre­tion over the en­tire regime of elec­tronic trans­ac­tions. The Statute Law Act amends sec­tion 83V to al­low the CS, in con­sul­ta­tion with the Com­mu­ni­ca­tions Au­thor­ity, to make any reg­u­la­tions un­der Part VI (a) of the prin­ci­pal act. It may be ar­gued oth­er­wise, but it re­mains the po­si­tion of this ar­ti­cle that the place­ment CS be­fore Com­mu­ni­ca­tions Au­thor­ity by the Statute Law Act (which ef­fec­tively trans­ferred such power to make reg­u­la­tions from the Com­mu­ni­ca­tions Au­thor­ity to the CS) wasn’t an ac­ci­dent. Sim­i­larly so, while it may be ar­gued that the amend­ment con­tem­plated the par­tic­i­pa­tion of the Com­mu­ni­ca­tions Au­thor­ity, such par­tic­i­pa­tion is re­duced to con­sul­ta­tion at the in­stance of the CS. The na­ture of in­sight gained from such con­sul­ta­tion is that it is non bind­ing. Con­sid­ered care­fully this un­folds be­fore him (the CS) the never end­ing world of mo­bile bank­ing, data trans­fer, soft­ware use and mo­bile money trans­fer! Again, heaven for­bid a “cre­ative” CS bent on equally “cre­ative” ap­pli­ca­tion of this sec­tion.

All the de­fi­cien­cies of the in­for­ma­tion and tele­coms law as it is af­ter the amend­ments be­tray two things. Fore­most is the ex­ten­sive lim­i­ta­tion of the pow­ers of the Com­mu­ni­ca­tions Au­thor­ity in the ap­pli­ca­tion of the new laws. Se­cond, is the breach of a very fun­da­men­tal dic­tate of the Con­sti­tu­tion of Kenya 2010 – the need for non-in­ter­fer­ence. Non-in­ter­fer­ence, in­deed in­de­pen­dence, of the me­dia is

but­tressed by the Con­sti­tu­tion un­der Ar­ti­cle 34, and also un­der sec­tion 5A (1) of the prin­ci­pal act. Sec­tion 5A is clear that: “The au­thor­ity shall be in­de­pen­dent and free of con­trol by govern­ment, political or com­mer­cial in­ter­ests in the ex­er­cise of its pow­ers and in the per­for­mance of its func­tions.”

With the na­ture and ex­tent of in­ter­fer­ence plainly hid­den within the prin­ci­pal act as it now is, and the ob­vi­ous­ness of say, Sa­fari­com’s clout, the thought of mala fides is never far from the minds of those who see it, and rightly so.

In a show of fur­ther de­fi­ance, while Ar­ti­cle 118 of the Con­sti­tu­tion pro­vides for open­ness and con­sul­ta­tion among stake­hold­ers in the leg­isla­tive process and other busi­ness of Par­lia­ment, many a stake holder have come out to say that they were not con­sulted prior to the mak­ing of the amend­ments – un­der­stand­ably so con­sid­er­ing the na­ture of mis­cel­la­neous amend­ments. Among those on record as hav­ing ex­pressed their reser­va­tions as re­gards the new laws are CA Di­rec­tor­gen­eral Fran­cis Wan­gusi, in­dus­try lob­by­ists Telecom­mu­ni­ca­tions Ser­vice Providers As­so­ci­a­tion (TESPOK), ma­jor tel­cos, the At­tor­ney-gen­eral and for­mer In­for­ma­tion CS, who cu­ri­ously aver that the amend­ments did not orig­i­nate from them! Mr Wan­gusi has also sen­sa­tion­ally claimed that the new pro­pos­als were at vari­ance with the ones ear­lier sub­mit­ted by the Min­istry of ICT for in­clu­sion in the bill.

Glar­ing am­bi­gu­ity

The “CS and/or Pres­i­dent” phrase is also quite in­ten­tional. The ap­point­ment pro­vi­sions of the prin­ci­pal act as amended by the 2013 Act con­tem­plate shared pow­ers be­tween the Pres­i­dent and the CS. To this ex­tent, the 2013 Act re­mains, at worst, whole­somely un­clear or, at best, am­bigu­ous. Sec­tion 7 (9) con­tem­plates ap­point­ment by ei­ther the Pres­i­dent or the CS. In re­gard to the same ap­point­ments, the sub­se­quent sub­sec­tion 10 con­tem­plates ap­point­ment by the pres­i­dent and the CS. So, who ac­tu­ally is the ap­point­ing au­thor­ity? To add to this am­bi­gu­ity, the law con­tem­plates res­ig­na­tion of any per­sons ap­pointed un­der the act through a let­ter to the CS, which would make him the ap­point­ing au­thor­ity. On the other hand, with re­gard to com­plaints, such com­plaints are made to the CS then for­warded to the Pres­i­dent for a fi­nal de­ci­sion. This may be in­ter­preted as plac­ing the Pres­i­dent as the ap­point­ing au­thor­ity. Such de­tails may be con­sid­ered mi­nor un­til we en­counter a CS and Pres­i­dent who do not read from the same script.

Com­pe­ti­tion and mar­ket dom­i­nance

One of the worst crimes of the prin­ci­pal act af­ter the lat­est amend­ments – pri­mar­ily the 2013 Act – is that it has failed to de­fine anti-com­pet­i­tive be­hav­iour. That dom­i­nant firms are open to regulation with­out nec­es­sar­ily abus­ing their dom­i­nance is an even greater letd-own of the Statute Amend­ment. The reg­u­la­tions with re­gard to anti-com­pe­ti­tion also re­main un­clear, as is the pun­ish­ment. In the same tra­jec­tory, Sec­tion 3A of the prin­ci­pal act which had made it dif­fi­cult to pun­ish those abus­ing dom­i­nance was deleted – a move that seem­ingly tar­gets Sa­fari­com (her re­cent de­fi­ance in her then suc­cess­ful ef­fort to fight of dom­i­nance claims that had been im­puted on her by the rest of the tele­coms, led by Air­tel Kenya, are not for­got­ten).

Im­pli­ca­tions

This move to re­de­fine dom­i­nance, com­pounded by mas­sive govern­ment in­ter­fer­ence as high­lighted above, when con­sid­ered against the fail­ure to de­fine anti com­pet­i­tive be­hav­iour, the nec­es­sary

In­con­tro­vert­ibly, im­ple­men­ta­tion has be­come the pol­icy is­sue that will de­ter­mine and shape the fu­ture plan­ning tra­jec­tory of Kenya’s de­vel­op­ment from eco­nomic, gov­er­nance and so­cial per­spec­tive

pun­ish­ments thereof and most cal­lously, the in­vok­ing of reg­u­la­tory mea­sures upon a firm at the dawn of its dom­i­nance with­out nec­es­sar­ily breach­ing such dom­i­nance can only mean one thing – that Kenya has ef­fec­tively moved from be­ing a free mar­ket econ­omy to a gov­ern­men­treg­u­lated one!

Reg­u­lated mar­kets are not ex­actly a hot­bed for for­eign in­vest­ment. This is the rea­son why large for­eign com­pa­nies pre­fer set­ting up in ju­ris­dic­tions where mar­kets are solely reg­u­lated by the forces of de­mand and sup­ply such as the US as op­posed to pro­tec­tion­ist or dereg­u­lated regimes such as China – just ask Jack Ma of the e- com­merce fran­chise Ali Baba.

Death sen­tence

On at­tain­ing mar­ket dom­i­nance, com­pa­nies will be re­quired to form sub­sidiaries if they re­serve the de­sire to con­tinue grow­ing. Sub­sidiaries, how­ever, in­crease op­er­a­tional costs (if only in the short term) whilst also in­creas­ing the lev­els of bu­reau­cracy that come with run­ning large par­ent com­pa­nies. The lat­ter may not present an ex­actly at­trac­tive phe­nom­e­non to for­eign com­pa­nies will­ing to in­vest within or to the al­ready large dom­i­nant fran­chises. Not only so; the def­i­ni­tion of mar­ket dom­i­nance to mean dom­i­nance as re­gards mar­ket share means that even the sub­sidiaries which are very suc­cess­ful will be re­quired to con­tin­u­ously break up so as to be in line with the statute reg­u­la­tions. The for­ma­tion of sub­sidiaries also bears the net ef­fect of dis­en­fran­chis­ing es­tab­lished en­ti­ties off their right to their brand. In other words, it may be dif­fi­cult to con­vince an in­vestor that M-pesa be­longs to Sa­fari­com, or Equi­tel to Equity Bank! As brands take time to cre­ate, and as they form the back­bone of a busi­ness en­tity, the sub­sidiary di­rec­tive does not, again, present such an at­trac­tive prospect for es­tab­lished en­ti­ties.

Whilst govern­ment regulation may pro­tect smaller en­ti­ties, start ups or do­mes­tic en­ti­ties against be­ing over­run by larger for­eign firms, such a regulation also has the net ef­fect of de­priv­ing the con­sumers of the lux­ury of choice,

va­ri­ety and cheaper prices. Even more im­por­tantly, this (govern­ment regulation) can only be ef­fec­tive in ju­ris­dic­tions that en­joy high do­mes­tic pro­duc­tion and have a large na­tion­al­ist (loyal) mar­ket such as China and a host of other western ju­ris­dic­tions. For strug­gling economies such as ours, which de­pend on for­eign cap­i­tal and for­eign in­vest­ment, reg­u­la­tions such as those form­ing the ba­sis of amend­ments to the In­for­ma­tion and Com­mu­ni­ca­tion Act 1998 could ac­tu­ally mean a very slow process of growth at best and a death sen­tence at worst. That such for­eign multi­na­tion­als re­main scep­ti­cal about a mar­ket reg­u­lated by sus­pect rules can­not be over em­pha­sised.

Best prac­tice

The new amend­ments fall way short in­ter­na­tional best prac­tice when it comes to regulation of tele­coms dom­i­nance. The court in “USA v. Mi­crosoft civil ac­tion no 98-1232 (TPJ)” was com­mend­ably elo­quent when it stated that in or­der to put in place an ef­fec­tive rem­edy, it is nec­es­sary first to iden­tify the anti com­pet­i­tive be­hav­iour and the com­pet­i­tive detri­ments that would re­sult from regulation. Any rem­edy that the reg­u­la­tory au­thor­ity comes up with should ad­dress the iden­ti­fied com­pet­i­tive harm aris­ing from the pro­posed trans­ac­tion. Our own law re­mains silent on both ends.

The Com­pe­ti­tion Au­thor­ity of Botswana listed the fol­low­ing as guid­ing prin­ci­ples in the as­sess­ment of dom­i­nance (they are clearly in­formed by the In­ter­na­tional Com­pe­ti­tion Net­work reg­u­la­tions and the obiter dicta in “USA v. Mi­crosoft”):

First, the def­i­ni­tion of the rel­e­vant mar­ket should be made with em­pha­sis on iden­ti­fy­ing other play­ers in the mar­ket with re­gard to pro­duc­tion and sup­ply. Se­cond, in­ves­ti­ga­tion of past and cur­rent con­duct of the dom­i­nant and other play­ers in the con­cerned mar­ket should be made with the view of iden­ti­fy­ing con­duct, busi­ness prac­tices and strate­gies that could meet the abuse of dom­i­nance test of less­en­ing com­pe­ti­tion and sub­stan­tially pre­vent­ing en­try and com­pe­ti­tion in fu­ture.

Third, as­sess­ment of cur­rent and fu­ture en­try con­di­tions in the rel­e­vant mar­ket to de­ter­mine whether en­try is likely to be timely and suf­fi­cient to dis­ci­pline the pric­ing, prod­uct qual­ity and other busi­ness de­ci­sions of the dom­i­nant sup­plier. Fourth, it must be de­ter­mined whether a mav­er­ick pro­ducer or the emer­gence of a com­pet­i­tive fringe will dis­ci­pline the dom­i­nant firms in the years ahead. Fifth, in­de­pen­dence of the reg­u­la­tor from the govern­ment and other play­ers in the mar­ket must be guar­an­teed. Sixth, there must ex­ist a clear man­date of the reg­u­la­tor. Lastly, col­lab­o­ra­tion be­tween the com­pe­ti­tions au­thor­ity and the com­mu­ni­ca­tions au­thor­ity must be en­sured.

The In­ter­na­tional Com­pe­ti­tions Net­work (un­der the Uni­lat­eral Con­duct Work­book chap­ter, “As­sess­ment of Dom­i­nance pre­sented at the 10th An­nual ICN Con­fer­ence” has re­mained scep­ti­cal about adopt­ing a def­i­ni­tion of dom­i­nance that fo­cuses on the mar­ket share as our laws do. Ac­cord­ing to Sec­tion 11:

“Such a def­i­ni­tion may not be suf­fi­ciently flex­i­ble to take into ac­count rel­e­vant fea­tures of the mar­ket, such as easy en­try or in­tense ri­valry based on rapid tech­no­log­i­cal de­vel­op­ments that sug­gest a firm may not be able to ex­er­cise mar­ket power durably de­spite a high mar­ket share”

As per Sec­tion 11 of the ICN reg­u­la­tions, “...dom­i­nance is not the only el­e­ment in a uni­lat­eral con­duct case, and analysing con­duct and as­sess­ing dom­i­nance should there­fore not be two to­tally sep­a­rated steps in the anal­y­sis of a uni­lat­eral con­duct case… Ev­i­dence used to as­sess dom­i­nance should in­form the anal­y­sis of con­duct and its an­ti­com­pet­i­tive ef­fects, and vice versa.”

The ar­gu­ments elu­ci­dated in the pre­vi­ous para­graphs be­tray a clear side­step of th­ese and other guide­lines. To this ex­tent thus, the In­for­ma­tion and Com­mu­ni­ca­tions Act of 1998, as amended, re­mains a starkly self de­feat­ing law.^

The Com­mu­ni­ca­tions Au­thor­ity Of­fices along Waiyaki Way.

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