[14 November 2022] ICASA has released its judgements in facilities leasing disputes raised by Telkom against other fibre network operators accused of using Telkom infrastructure to deploy their own networks without entering into a facilities leasing agreement with Telkom.
[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.
While the 2010 Regulations have not been formally amended, the Electronic Communications Amendment Act, 2014 did introduce changes. The Amendment Act:
- amends “financial feasibility” to “economic feasibility” for the purpose of determining the feasibility of a facilities leasing request under Chapter 8
- sets out further provisions to ensure that facilities leasing agreements are not in any way discriminatory compared to comparable network services provided by a licensee to itself or an affiliate
- introduced a new section 43(8A) which holds that requests for the leasing of essential facilities are deemed “to promote the efficient use of electronic communications networks and services” and that recipients of a request to lease essential facilities would be required to agree on non-discriminatory terms and conditions for the implementation of the lease within 20 business days of receiving the request. Such recipient must otherwise provide that the request is not technically or economically feasible within the 20 business day period. In the absence of agreement on the terms and conditions to be applied ICASA is empowered to impose appropriate terms and conditions within 20 business days of receiving notification of a failure to agree.
- holds that any exclusivity provision prohibited under section 43(10) of the ECA will be regarded as invalid as of one year after the commencement of the Amendment Act. Such prohibited provisions include agreements relating to access to international electronic communications facilities that restrict the ability of third parties to access such facilities. ICASA is authorised to create a framework for exempting (in whole or in part) licensees that have less than 25% market share from the obligation to lease facilities.
- amends the definition of “electronic communications facility” to make it clear that this definition includes
- access to wiring in multi-tenant buildings
- exchange buildings
- carrier-neutral hotels and
- data centres.