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No. 28743
Act No. 36, 2005
GOVERNMENT GAZETTE, 18 APRIL 2006
ELECTRONIC COMMUNICATIONS ACT, 2005
(3) The Authority must, within 14 days of receiving the request, or such longer period
as is reasonably necessary in the circumstances, determine the reasonableness of the
request.
(4) For purposes of subsection (1), a request is reasonable where the Authority
determines that the requested lease of electronic communications facilities—
(a) is technically and financially feasible; and
(b) will promote the efficient use of electronic communication networks and
services.
(5) In the case of unwillingness or inability of an electronic communications network
service licensee to negotiate or agree on the terms and conditions of an electronic
communications facilities leasing agreement, either party may notify the Authority in
writing and the Authority may—
(a) impose terms and conditions consistent with this Chapter;
(b) propose terms and conditions consistent with this Chapter which, subject to
negotiations among the parties, must be agreed to by the parties within such
period as the Authority may specify; or
(c) refer the dispute to the Complaints and Compliance Committee for resolution
on an expedited basis in accordance with the procedures prescribed in terms of
section 46.
(6) For the purposes of subsection (5), unless otherwise agreed in writing by the
parties, a party is considered unwilling to negotiate or unable to agree if a facilities
leasing agreement is not concluded within the time frames prescribed.
(7) The lease of electronic communications facilities by an electronic communications network service licensee in terms of subsection (1) must, unless otherwise
requested by the leasing party, be non-discriminatory as among comparable types of
electronic communications facilities being leased and not be of a lower technical
standard and quality than the technical standard and quality provided by such electronic
communications network service licensee to itself or to an affiliate.
(8) The Authority must prescribe a list of essential facilities including but not limited
to—
(a) electronic communications facilities, including without limitation local loops,
sub-loops and associated electronic communications facilities for accessing
subscribers and provisioning services;
(b) electronic communications facilities connected to international electronic
communications facilities such as submarine cables and satellite earth
stations; and
(c) any other such facilities,
required to be leased by an electronic communications network service licensee in terms
of subsection (1).
(9) The Authority must review the list of electronic communications facilities at least
once every 36 (thirty six) months and, where the Authority finds market conditions
warrant it, make modifications to such list after undertaking an inquiry in accordance
with section 4B of the ICASA Act.
(10) An electronic communications network service licensee may not enter into any
agreement or other arrangement with any person for access to, or use of, any
international electronic communications facilities, including submarine cables and
satellites, that—
(a) contains an exclusivity provision;
(b) contains provisions that create undue barriers to access to and use of such
international communication facilities; or
(c) otherwise restricts any party to such agreement or other arrangement from—
(i) leasing;
(ii) selling; or
(iii) otherwise entering into an agreement with any licensee under this Act or
person providing services pursuant to a licence exemption for access to,
and use of, such international electronic communications facilities.
(11) Any exclusivity provision contained in any agreement or other arrangement that
is prohibited under subsection (10) is invalid from a date to be determined by the
Minister after consultation with relevant parties.
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