Government Gazette

Vol. 417, No. 20993, 15 March 2000

GENERAL NOTICE

Notice 1260 of 2000

DEPARTMENT OF COMMUNICATIONS

In terms of section 96(6) of the Telecommunications Act, 1996 (Act No. 103 of 1996), I, Dr. Ivy Matsepe-Casaburri, Minister of Communications, hereby approve and publish the following regulations made by the South African Telecommunications Regulatory Authority in terms of section 44 of the Act regarding Facilities Leasing Guidelines.

Dr. Ivy Matsepe-Casaburri
Minister of Communications

 

FACILITIES LEASING GUIDELINES ISSUED BY THE AUTHORITY IN TERMS OF SECTION 44 OF THE TELECOMMUNICATIONS ACT 1996

1. DEFINITIONS

1.1 In these Guidelines the following words will have the meaning given to them unless the context otherwise requires.

Essential Facility means a facility of a telecommunication network or service that:

  1. (i) is exclusively or predominantly provided by a single or limited number of suppliers; and
    (ii) cannot feasibly, whether economically and / or technically be substituted in order to provide a service; or
  1. is declared by the Authority by notice in the Government Gazette to be an Essential Facility, where, in its opinion, this would promote the objects of the Telecommunications Act.

Facilities Acquirer means a provider of a telecommunication service who has Leased facilities or has requested that it be able to Lease facilities from a Facilities Provider.

Facilities Provider means a provider of a telecommunication service who is required to Lease facilities under section 44 of the Telecommunications Act.

Facilities Leasing Agreement means an agreement in relation to the leasing or otherwise making available of facilities.

Facilities Information means information in the possession or control of the Facilities Provider that relates to a facilities request and which may assist the Facilities Acquirer:

  1. to better formulate its request for facilities;
  2. to plan, establish or maintain its telecommunication system or a telecommunication service for the purpose of including but not limited to:
  1. technical, traffic and other relevant information;
  2. system and facilities specifications; and
  3. any material changes to that information or specifications which may impact on the Facilities Acquirer's Leasing arrangements or the services it intends to provide to customers by means of that Facilities Leasing.

Facilities Leasing means the leasing or otherwise making available of telecommunication facilities.

Major Operator in relation to a form of Facilities Leasing means a telecommunication Service Provider

  1. with more than 35% market share in the Telecommunications Market in which it operates, unless it can show that it does not have market power, or
  2. which has the ability to materially affect the terms of participation (having regard to price and supply) in the Telecommunications Market for basic telecommunication services as a result of:
  1. control over Essential Facilities; or
  2. use of its position in the market
  1. is declared by the Authority by notice in the Government Gazette to be a Major Operator where, in its opinion, this will promote the objects of the Act.

Private Operator means a provider of a private telecommunication network.

Public Operator means the provider of a public switched telecommunication service or a public mobile cellular telecommunication service.

Service Provider means a provider of a telecommunication service other than a Public Operator or a Private Operator.

Telecommunications Act means the Telecommunications Act 1996 (Act No 103 of 1996).

Telecommunication Market means any of the following markets:

  1. public switched and telecommunication services;
  2. mobile cellular telecommunication services;
  3. national long distance telecommunication services;
  4. local access telecommunication services and public Payphone services;

1.2 Words used in these Guidelines that are not defined by these Guidelines but are defined by the Telecommunications Act shall have the meaning given to them by the Telecommunications Act.

2. APPLICATION OF FACILITIES LEASING GUIDELINES

2.1 Subsection 44(5) of the Telecommunications Act requires the Authority to prescribe guidelines relating to the form and content of Facilities Leasing Agreements including amongst other matters:

  1. the time by or period within which Facilities Leasing pursuant to the Agreement shall be carried out;
  2. the quality or level of service applicable to Facilities Leasing;
  3. the fees and charges payable for Facilities Leasing.

2.2 These Guidelines:

  1. are issued by the Authority under subsection 44(5) of the Telecommunications Act;
  2. will be applied by the Authority in the manner contemplated by section 44 of the Telecommunications Act;
  3. apply to all Facilities Providers and Facilities Aquirers although specific parts of these Guidelines apply only to certain Facilities Providers or certain Essential Facilities;
  4. do not restrict a person's rights under section 44 of the Telecommunications Act; and
  5. may be varied by the Authority from time to time by way of the appropriate procedures as contemplated in the Act.

2.3 These Guidelines are intended to provide guidance to parties and are not intended:

  1. to limit the matters which may be dealt with in a Facilities Leasing Agreement but to provide a minimum set of issues which should be addressed; and
  2. to prevent or delay parties from negotiating or entering into bilateral or multilateral agreements which deal with matters other than those addressed in these Guidelines.

3. CONTENTS OF FACILITIES LEASING OR SHARING AGREEMENTS

3.1 A written Facilities Leasing Agreement must inter alia address each of the following matters unless it is not relevant to the Facilities Leasing that has been requested:

  1. the scope and specification of the facilities to be provided;
  2. access to all ancillary or supplementary services or access to and use of premises or land that are required to support the provision of facilities;
  3. service levels and the maintenance of facilities;
  4. charges for the facilities;
  5. billing and settlement procedures;
  6. ordering, forecasting, provisioning and testing procedures;
  7. the provision of colocation for facilities and the terms and conditions in accordance with which co-location is to be provided;
  8. the provision of information regarding system modernisation or rationalisation;
  9. technical specifications, standards and interoperability tests;
  10. information handling and confidentiality;
  11. duration, renegotiation and review procedures;
  12. dispute resolution procedures.

3.2 The interconnection agreement shall contain all the terms and conditions of the agreement between the parties related to interconnection matters, and no amendments, alterations,additions, variations or consensual cancellations will be of any force or effect unless they are reduced to writing, signed by both parties and approved by the Authority.

4. PROMOTION OF USE OF SERVICES AND FACILITIES

4.1 The terms and conditions of a Facilities Leasing Agreement must, in the opinion of the Authority, promote the increased public use of telecommunication services or more efficient use of telecommunication facilities.

5. FACILITIES LEASING AGREEMENTS NOT TO PRECLUDE RIGHTS

5.1 A Facilities Leasing Agreement must not:

  1. seek to preclude or frustrate the exercise of any statutory powers or prevent any person from seeking the exercise of statutory powers;
  2. impose any penalty, obligation or disadvantage on a person for seeking the exercise of any statutory powers;
  3. prohibit a person from providing a telecommunication service or facility which that person is lawfully able to provide or;
  4. frustrate the provision of a telecommunication service or facility by a person which that person is lawfully able to provide.

5.2 A facility acquired under a Facilities Leasing Agreement may not be used for any unlawful purpose.

5.3 A Facilities Acquirer may at any time request that a Facilities Provider vary any term or condition of a Facilities Leasing agreement. A Facilities Provider may refuse that request but if it does so this will be a dispute for the purposes of section 43 of the Act.

6. REQUESTS FOR FURTHER FACILITIES LEASING AND GOOD FAITH NEGOTIATIONS

6.1 A Facilities Provider must provide Facilities Information to a Facilities Acquirer who requests reasonable Facilities Information. A Facilities Provider need not provide Facilities Information if the Authority determines that it is not to be provided.

6.2 The parties to a Facilities Leasing Agreement must negotiate in good faith and use their reasonable endeavours to resolve all disputes relating to the facilities the subject of that agreement or any other facility.

6.3 All requests for new Facilities Leasing Agreements must be filed with the Authority.

7. CONTINUATION OF LEASING OF FACILITIES

7.1 A Facilities Provider may not terminate a Facilities Leasing Agreementunless:

  1. the termination is for
  1. fundamental breach of the Agreement; or
  2. vis major; or
  3. liquidation, Reregistration or insolvency of one of the parties to the Agreement.
  1. the Facilities Provider gives reasonable written notice of its intention to terminate specifying the grounds of termination and, in the case of breach, requiring that the breach be remedied within the following notice periods;
  1. Service Providers not less than three (3) months; and
  2. Public Operators or Private Operators not less than three (3) months; and
  3. the Facilities Acquirer has been given the opportunity to remedy the breach and has failed to do so.

7.2 A Facilities Provider of an Essential Facility may not terminate a Facilities Leasing Agreement without the Authority's consent.

7.3 A Facilities Leasing Agreement must not allow the suspension of Facilities Leasing except where this is necessary to address material degradation of telecommunication systems or services or other material threat to the maintenance of the facilities.

7.4 A Facilities Leasing Agreement must establish termination and suspension procedures that minimise any adverse affect of that termination or suspension on Customers.

8. NON-DISCRIMINATION PRINCIPLES

8.1 A Facilities Provider must treat each:

  1. Facilities Acquirer on a basis that is non-discriminatory in its provision of facilities and no less favourable than the treatment which the Facilities Provider affords to its subsidiaries, its affiliates, or other similarly situated telecommunication service providers;
  2. telecommunication service of a Facilities Acquirer on a basis that is non-discriminatory and no less favourable than the treatment which the Facilities Provider affords to the telecommunication services of itself, its affiliates, or other similarly situated telecommunication service providers; and
  3. Customer of a Facilities Acquirer on a basis that is non-discriminatory and no less favourable than the treatment which the Facilities Provider affords to its own Customers or the Customers of its subsidiaries, its affiliates, or other similarly situated telecommunications service providers.

9. REQUESTS FOR THE LEASING OF FACILITIES

9.1 A Facilities Leasing Agreement must be entered into as soon as practicable after the Facilities Provider has received a request for facilities leasing, but in any event not later than three (3) months. This period may however be extended by such time as allowed by the Authority in any particular case

9.2 In cases of existing leasing of facilities and in the absence of a Facilities Leasing Agreement, a Facilities Leasing Agreement must be entered into within three (3) months after these regulations come into effect.

10. TIME FOR SUPPLY AND QUALITY OF FACILITIES

10.1 A Facilities Leasing Agreement will include time periods for the provisioning of each type of facility in each type of area which must not exceed forty five (45) calendar days or as directed by the Authority in writing for that type of facility for that type of area.

10.2 A Facilities Leasing Agreement will contain services levels that reflect good Facilities Leasing practice.

10.3 A Facilities Leasing Agreement must provide reasonable remedies for any failure to meet time periods for the provisioning of Facilities and service levels.

10.4 The parties to a facilities agreement will comply with all relevant standards of the International Telecommunications Union and such other technical standards as the Authority may prescribe from time to time.

10.5 In the event of the parties failing to reach an agreement with regard to the quality or level of service, the quality or level of service will be determined by the Authority.

11. EFFICIENT PROV1810NING

11.1 The Leasing of facilities by a Facilities Provider under a Facilities Leasing Agreement must be efficient and occur in accordance with the time table negotiated between the parties and specified in the Facilities Leasing Agreement.

11.2 The provisioning of facilities must be non-discriminatory as between the Facilities Acquirer and the Facilities Provider, and any subsidiaries, affiliates or related companies of the Facilities Provider.

11.3 Provisioning procedures must not include any unnecessary steps and requests for facilities must be provisioned in the order received and must not be provisioned after retail orders of the providing party, or orders of any affiliate or related party of the providing party.

12. FACILITIES CHARGING STRUCTURE

12.1 Charges for the provision of facilities shall be structured to distinguish and separately price the following aspects:

  1. the establishment and implementation (if any) of the physical facilities, including testing;
  2. rental charges for use of facilities, equipment and resources; and
  3. variable charges for ancillary and supplementary services.

12.2 All charges for the Leasing of facilities shall be transparent and sufficiently unbundled so that the party seeking facilities does not have to pay for system components or facilities that it does not require.

12.3 Charges for Facilities Leasing must not exceed retail charges for the provision of the equivalent services or facilities to be provided by that Facilities Leasing.

12.4 A Facilities Acquirer is free to acquire services from a Facilities Provider at any retail price offered by the Facilities Provider without prejudice to any rights to acquire the same or similar services under an Facilities Leasing Agreement.

13. CHARGING FOR MAKING FACILITIES AVAILABLE

13.1 Major Operators of Essential Facilities must Lease Essential Facilities to any requesting Public Operator at the long run incremental cost (LRIC) of those Essential Facilities.

13.2 LRIC is to be calculated on the basis of relevant forward looking economic costs calculated for an efficient telecommunications service provider and including a reasonable cost of capital.

13.3 Major Operators of Essential Facilities must Lease those Essential Facilities to Service Providers at no more than the Major Operators fully allocated costs for those Essential Facilities.

14. CONFIDENTIALITY

14.1 All confidential information provided by a party to another party in relation to Facilities Leasing must:

  1. be kept confidential and only used in relation to the Facilities Leasing except where the disclosure is authorised in writing by the other party, authorised or required by law or is lodged with the Authority; and
  2. only be disclosed to employees, agents or advisers who need to know that information for the purpose of the Facilities Leasing or advising thereon.

14.2 Confidential information of a party received by the other party in relation to the Leasing of facilities or information generated by the telecommunication system of a party as a result of Facilities Leasing must not be disclosed to any person involved in the development or provision of retail services of the other party or its subsidiaries or affiliates.

14.3 Confidentiality provisions of a Facilities Leasing Agreement must not prevent or frustrate the public disclosure of any Facilities Leasing Agreement by the Authority.

15. TRANSPARENCY OF AGREEMENTS

15.1 Where a major operator has entered into a written facilities leasing agreement for a particular service, the operator shall make that agreement publicly available.

15.2 In the event that an operator requests that parts of an agreement not be made publicly available, the Authority will make a determination as to the nature of the confidential commercial information and may exempt the operator from making such information publicly available.

16. PROCEDURES

16.1 The Authority is to be advised by the requesting party of any new request for a facilities leasing agreement.

16.2 Prior to an operator or operators referring a dispute as to reasonableness or inability to negotiate to the Authority for a formal determination, either party may request the Authority's assistance in resolving the dispute through mediation.

16.3 Disputes between operators as to the reasonableness of a request for facilities leasing are to be referred to the Authority for a decision as to the reasonableness of the request.

16.4 Where an operator alleges that another operator is unwilling to negotiate or agree on any term or condition on which facilities leasing arrangements are to be provided, the issue is to be submitted to the Authority for decision.

16.5 Where an operator or any other person alleges that there has been a contravention or failure to comply with:

  1. the provisions of the Act;
  2. the appropriate Guidelines; or
  3. a facilities leasing agreement,

then the Authority shall investigate and make a decision in response to the allegation.