LLU in the context of SNO and EC Bill

Here's a question to all the lawyers on the forum.

It was stated by Tracy Cohen of Icasa that Local Loop Unbundling (LLU) won't be considered for the next 2 years. This seems to be a concession to the SNO.

In reading the Electronic Communications (EC) Bill, it makes provision in 5.(5)(a) for Electronic Communications Network Services class licenses where the license is for a limited geographical area such as a municipal district.

5.(5) Electronic communications network services, broadcasting services and electronic communications services that require a class licence, include, but are not limited to-
(a) electronic communications networks of district municipality or local municipal scope operated for commercia1 purposes;
(b) community broadcasting and low power services whether provided free-to-air or by subscription:
(c) such other services as may be prescribed, that the Authority finds do not have significant impact on socio-economic impact

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My understanding is that Icasa don't require ministerial approval to issue class licenses. So my reading of the EC bill is that it would be possible for ISPs to provide basic network infrastructure within a defined geographical area on the same basis as Telkom and the SNO.

Furthermore, in section 43.(8) which deals with essential facilities, it states the following:

43.(8) The Authority must prescribe a list of essential facilities including but not limited
t o-
(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).

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So it seems that Telkom will have to provide access to their local loop to all other Electronic Communications Network Service licensees including ones registered to operate only in a defined municipal district. So a smaller ISP which is for example only based in the Johannesburg municipal district, could apply for a Electronic Communications Network service class license and Telkom would be obliged to provide access to the local loop to this ISP in terms of section 43.(1). If this is correct, then such a smaller ISP would be able to colocate their own DSLAMs in the relevant Telkom exchanges.

43. (1) Subject to section 44(5) and (6), an electronic communications network service licensee must, on request, lease electronic communications facilities to any other person licensed in terms of this Act and persons providing services pursuant to a licence exemption in accordance with the terms and conditions of an electronic communications facilities leasing agreement entered into between the parties, unless such request is
unreasonable.

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So finally here's the question: Is this a correct interpretation of the EC Bill?

marker

@ic: I appreciate what your saying that by moving the fibre nearer to the consumer, Telkom could be making it more difficult for the SNO or any other entity to use the local loop.

In my discussion of the EC bill above, I'm trying to predict/interpret two sections of the EC Bill together. The first part, which you correctly pointed to, is that VANs or other entitities could apply for a class license to implement their own networking infrastructure in a municipal district. This is section 5.(5) (a). My contention here is that we should see much more of this type of activity as only a class license is required, ie no ministerial approval on a license by license basis. So the only bottleneck in this regard could be the time it takes ICASA to publish the necessary 5.(5) (a) class license requirements and regulations.

The second part of my argument revolves around section 43 which deals with essential facilities, specifically section 43.(8) and 43.(1). My understanding is that ICASA can/should/will (here I'm not so sure?) publish a list of "essential facilities" which, once published, has to be made available to other entities who have a valid license ito the act. The list of essential facilities includes but are not limited to local loops and sub-loops (43.(8)(a)).

So if ICASA has published the essential facilities list and it includes local loops, then an entity which has a municipal district license, has a legal basis to force Telkom (or other licensed entity) to open the local loop for its own network. That would mean that a municipal district licensee could lay its own fibre with the same access to roads, public and private land as Telkom. It could further connect such a network to the Telkom local loop in that municipal district in order to access subscribers/consumers. It could further connect to a 1st-tier provider such as the SNO or Sentech to get national and international connectivity.

So if the EC bill is signed into law soon and if ICASA publishes the regulations/requirements for section 5.(5)(a) licenses with some haste and additionally publishes the essential facilities list, and it includes local loops and sub-loops, we could soon see a very compelling and competitive telecommunications environment. No new legislation required, ICASA just having to pull some finger.

In the light of all of the above, Tracey Cohen's comment that the local loop won't be unbundled for the next 2 years is somewhat strange. Does she imply that ICASA won't include the local loop as part of an essential facilities list for the next 2 years? ICASA if you're reading this, please clarify.

*Chuckle*

mystic said:

ICASA if you're reading this, please clarify.

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Can't tell you which they won't do, but I suspect it's both.