Trends in Telecommunication Reform 2010-11 to undersea fiber optic with onward connections to In-dia For those countries that do not have the benefit of and Europe has resulted in Kenya Data Networks competing infrastructure and well functioning interna-tional (KDN), a Kenyan data services provider, announcing it would “slash” Internet prices by 90 per cent.35 However, liberalization may be more difficult in some developing countries, particularly those that are landlocked or iso-lated gateway markets, ex ante regulation may be war-ranted. Some countries, such as Singapore29, India30 and Colombia, have resolved instances of market failure through ex ante regulation imposing various obligations on the owners or operators of international gateways. In Colombia, for example, after conducting a review of wholesale inputs for broadband Internet access, the regulator found that cable landing stations constitute essential facilities and thus required landing station op-erators small island developing states (SIDS)36 without access to submarine cables since they may have to rely instead on alternative technologies, such as satellites, which may carry a higher price premium. 3.3.2 Transition from Ex Ante towards an to provide access to their facilities on non-discriminatory Ex Post ICT Regulatory Environment terms and conditions and to publish a reference access offer.31 Recognizing that the rationales for ex ante regula-tion no longer hold as markets mature and become Self-regulation can also be a tool, in which consor-tium agreements contain non-discrimination and open-access more competitive, gradual fine-tuning or, in some cases, even full withdrawal of targeted ex ante regulation be-comes safeguards to address potential problems necessary to better reflect competitive condi-tions in the market and serve consumer interests. stemming from absent or ineffective competition and regulation. Self-regulation was used in the case of the Eastern African Submarine Cable System (EASSy), a project to build a submarine fibre-optic cable that runs from South Africa to Sudan with connections to all of the countries along its route. Launched in 2010, EASSy, allows any of the consortium members to sell capacity in any market in the region to licensed operators on non-discriminatory terms and conditions, creating competition for the remaining members of the consor-tium. When market conditions warrant the phasing out of ex ante regulation, regulators should consider, on a case-by- case basis, the need to establish sunset provisions or transition periods to ensure a smooth shift into an ex post regulatory environment. Transition periods allow stakeholders, consumers and service providers to grad-ually adapt to a new regulatory framework. Both the United Kingdom and Portugal, for example, adopted transition periods as they moved from ex ante forms of regulation to ex post regulatory frameworks. In May 2008, when reviewing the wholesale broadband access markets, Ofcom determined that British Telecom (BT) no longer had significant market power (SMP) in local exchanges where alternative services providers had emerged. In response, Ofcom withdrew certain regula-tory 32 A similar approach was used in the SEACOM sys-tem, launched in early 2009.33 However, contractual agreements alone may not resolve market failure where effective regulatory frameworks for competitive international connectivity have yet to be adopted or enforced. One example is the South Atlantic 3/West Africa Submarine Cable (SAT- 3/WASC), which runs along the West coast of Africa. Despite evidence of increased market concentration, possible exclusionary practices and underutilization of the infrastructure, the relevant national regulatory au-thorities obligations immediately (e.g., non-discrimination and transparency requirements), but required BT to provide existing customers network access for a 12-month transition period to afford BT’s wholesale customers the opportunity to make alternative ar-rangements. Similarly, when reviewing the wholesale have not addressed the contractual agree-ments that guarantee exclusive control over and use of broadband access market in 2009, ICP-ANACOM found that Portugal Telecom (PT) did not have SMP in certain geographic markets and accordingly decided to with-draw submarine cables and landing stations by members of the owning consortium, most of which are incumbent providers.34 ex ante regulation in such markets. Unlike Ofcom, the Portuguese regulator opted to maintain a 12-month phase-out period for most ex ante obliga-tions In the long-term, liberalization and promotion of imposed on PT in these geographic areas, includ-ing non-discrimination, transparency, access, cost competition among and within facilities that provide international connectivity, in particular submarine cables and landing stations, is the best way to guaran-tee accounting and financial reporting. The price control, however, was phased-out immediately upon the adop-tion lower costs. For example, the 2009 landing of the of the decision.37 SEA Cable System (SEACOM) that interconnects Kenya, Madagascar, Mozambique, South Africa, and Tanzania 94 Chapter 3