No. 4378
Government Gazette 16 November 2009
Act No. 8, 2009
33
COMMUNICATIONS ACT, 2009
(2)
It is the duty of a carrier who has a dominant position with relation to
some class of telecommunications services to –
(a)
provide subject to subsection (3), to any requesting carrier,
nondiscriminatory access to network elements on an unbundled basis
at any technically feasible point on rates, terms, and conditions that are
just, reasonable, and nondiscriminatory in accordance with the terms
and conditions of the agreement between them and the requirements of
this Act;
(b)
provide subject to subsection (5), on rates, terms, and conditions that
are just, reasonable, and nondiscriminatory, for physical co-location
of equipment necessary for interconnection or access to unbundled
network elements at the premises of the dominant carrier, if such
network elements relate to the market segment in which the carrier in
question is dominant.
(3)
Subject to subsection (4), a dominant carrier must provide such
unbundled network elements in a manner that allows requesting carriers to combine
such elements in order to provide the telecommunications service concerned.
(4)
If –
(a)
it does not place an unreasonable burden upon the dominant carrier;
and
(b)
it will place an unreasonable burden upon the carrier requesting such
elements if it is not done, the dominant carrier must combine such
elements in the manner requested.
(5)
The dominant carrier may provide for virtual or any other form of colocation if it demonstrates to the Authority that physical co-location is not practical for
technical reasons or because of space limitations.
(6)
The Authority may after a rule-making procedure, make regulations
regulating the duties imposed on carriers by this section and the terms upon which
carriers must agree to fulfil these duties.
(7)
In determining what network elements must be made available for the
purposes of subsection (2)(a), the Authority must consider, at a minimum, whether –
(a)
access to such network elements as are proprietary in nature is
necessary; and
(b)
the failure to provide access to such network elements would impair the
ability of the carrier seeking access to provide the services that it seeks
to offer.
(8)
Any carrier may request the Authority to convene a hearing in order to
determine reasonable terms relating to the duties referred to in this section.
(9)
For the purposes of this section, “network element” means a facility or
equipment used in the provision of a telecommunications service, including all features,
functions and capabilities that are provided by means of such facility or equipment,