[14 November 2022]
South Africa’s communications regulator, ICASA, has issued rulings in conflicts concerning facility leasing. These disputes involve Telkom, who accused other fiber optic network operators of utilizing Telkom’s infrastructure to create their own networks, without a leasing agreement in place.
[22 August 2020]
The High Court issued a strong ruling that promotes competition in the telecom industry by requiring companies to share electronic communication infrastructure.
Telkom v ICASA & others 28332_18
Vodacom asked Telkom to share space in their underground tunnels (ducts) so they could bring faster fiber internet to customers. Telkom disagreed and made things difficult by bringing up a bunch of legal reasons to slow everything down.
Eventually, a government agency (ICASA) looked into the situation and said Vodacom could use the ducts. Telkom wasn’t happy and tried to challenge this decision in court, but the judge firmly sided with Vodacom.
There’s a law that says companies like Telkom have to share their facilities with others if it’s technically possible and makes business sense. Vodacom argued their request to use the ducts followed this law, but Telkom disagreed.
This court case is a big deal because it explains this law clearly, which hasn’t been done well before. Even though Telkom might try to fight it again, this decision is a win for Vodacom and shows that the government agency was right to try and fix the situation.
Even though the 2010 Regulations haven’t been officially updated, the Electronic Communications Amendment Act of 2014 still made some changes. Here’s what the Amendment Act does:
- It changes the wording used when considering if a facilities leasing request makes financial sense. Instead of “financial feasibility,” the Act now uses “economic feasibility.”
- It makes sure that facilities leasing agreements treat everyone fairly. Essentially, a company can’t offer better deals to itself or its affiliates than it offers to others who want to lease its facilities.
- It adds a new rule for leasing essential facilities. This rule says that such requests are automatically considered good for competition in the electronic communications industry. The company that owns the facilities has to respond to a lease request within 20 business days, either by agreeing on fair terms or explaining why the lease isn’t possible. If no agreement is reached, a government agency (ICASA) can step in and set the terms.
- It gets rid of certain agreements that limit access to facilities. Specifically, it cancels any agreements that prevent other companies from using international communications lines after a one-year grace period. ICASA can also create exceptions for smaller companies (those with less than 25% market share).
- It clarifies what’s considered an “electronic communications facility.” This now includes things like wiring in apartment buildings, buildings that house telecommunications equipment, facilities that allow different companies to use their infrastructure, and data centers.
Electronic Communications Facilities Leasing Regulations, 2010