[22 August 2020] The High Court has delivered a clear and compelling judgement on electronic communications facilities leasing, a pro-competitive remedy which is critical to allowing access to and sharing of infrastructure.
The story is well-known: Vodacom had requested access to space in Telkom ducts to deploy fibre alongside an existing Telkom copper network. Telkom actively frustrated this request, raising a variety of legal points to engineer complexity and cause delays. Eventually, after ICASA had made a ruling – based on a physical inspection – to allow Vodacom access, Telkom took this decision on review where it met an extremely unsympathetic judge.
Chapter 8 of the ECA read with the Electronic Communications Facilities Regulations 2010 obliges an ECNS licensee to lease a facility to another licensee / licence-exempt person on request subject to that request being commercially and technically feasible. Vodacom’s request for access to Telkom’s ducts was a “facilities leasing” request, the reasonableness of which Telkom disputed on multiple grounds.
The judgement is worth reading just for the clarity it brings to what has been an area of law which has been extremely poorly implemented. While Telkom are considering appealing – they shouldn’t – this judgement stands as an important precedent as well as a vindication of ICASA’s role in trying to resolve the dispute.