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No. 28743
Act No. 36, 2005
GOVERNMENT GAZETTE, 18 APRIL 2006
ELECTRONIC COMMUNICATIONS ACT, 2005
45(3) and (4) do not apply to any such electronic communications facilities leasing
agreement.
(7) Despite a finding of significant market power, for purposes of promoting
investment in new fibre electronic communications networks, the Authority may exempt
an electronic communications network service licensee from the obligation to lease fibre
loops and sub-loops serving residential premises if the electronic communications
network service licensee meets the following requirements:
(a) The new fibre loops and sub-loops, as applicable, have been, or will be,
constructed and placed in operation after the coming into force of this Act;
(b) the new fibre loops and sub-loops, as applicable, are, or will be—
(i) constructed in, and serve, a geographic area that, at the time of
construction, is not then served by the electronic communications
network service licensee and such electronic communications network
service licensee has no obligation to serve such geographic area; or
(ii) constructed in, and serve, a geographic area that, at the time of
construction, is then served by the electronic communications network
service licensee and such electronic communications network service
licensee maintains and continues to support its existing electronic
communications facilities in the geographic area and to make such
existing electronic communications facilities available for lease in
accordance with the obligations under this Chapter and electronic
communications facilities leasing regulations; and
(c) the electronic communications network service licensee has not entered into
any exclusive arrangement with the owner of the property, local authority or
any other person or persons exercising control over the geographic area or
parts thereof barring or impeding the construction of competing electronic
communications networks in the geographic area.
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Filing of electronic communications facilities leasing agreements
45. (1) An electronic communications facilities leasing agreement must be in writing
and must be submitted to the Authority.
(2) Electronic communications facilities leasing agreements are effective and
enforceable upon being filed with the Authority in the prescribed manner unless an order
of a court of competent jurisdiction is granted against such agreement or the Authority
provides the parties with written notice of non-compliance in terms of subsection (6).
(3) The Authority must publish electronic communications facilities leasing
agreements submitted in terms of subsection (1).
(4) The Authority must, at the request of any person and on payment of such fee as
may be prescribed, furnish that person with a copy of any electronic communications
facilities leasing agreement.
(5) The Authority must review electronic communications facilities leasing agreements submitted in terms of subsection (1) to determine whether such agreements are
consistent with the regulations prescribed.
(6) Where the Authority determines that any term or condition of an electronic
communications facilities leasing agreement is not consistent with the regulations, the
Authority must in writing—
(a) notify the parties of the non-complying terms and conditions; and
(b) direct the parties to agree on new terms and conditions consistent with the
regulations.
(7) The parties must, upon reaching agreement and amending the non-complying
terms and conditions of the electronic communications facilities leasing agreement,
submit the amended agreement to the Authority for consideration and review.
(8) The provisions of subsections (5) and (6) apply, with the necessary changes, to
such consideration and review of the amended agreement by the Authority.
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