Draft Facilities Leasing Regulations, circa 2009

Posted by LA Thornton on Monday, December 7, 2009
ICASA published another set of draft facilities leasing regulations for public comment.  You can download a copy here.

In case you were wondering - yes, you have seen draft facilities leasing regulations before, not once, but twice, since the coming into force of the EC Act.

ICASA published draft facilities leasing regulations in Government Gazette 30091 dated 24 July 2007. Those draft regulations were pretty good, eliminating most of the problems with the existing regulations, which had been promulgated under the Telecommunications Act. 
ICASA published a second iteration of the facilities leasing regulations in Government Gazette 30605 dated 24 December 2007, trying to accommodate many points of view, resulting in less than ideal second draft.  To confuse matters even more, in Government Gazette 30610 dated 24 December 2007, ICASA published a draft list of essential facilities and regulations pertaining thereto, without clearly distinguishing regulations for regular facilities and those for essential facilities.

This new draft - almost two years after the previous one - has resolved some of the problems with the second draft.  However, it has big problems.  The biggest is that the regulations in no way deal with pricing.  ICASA defends this by pointing out that it does not have the authority to set wholesale rates (which it probably doesn't) AND then asserting that it can only impose pricing controls in terms of Chapter 10, leaving section 47 of the EC Act superfluous (a result Parliament might argue with).   There are other problems with the regulations too - in particular, clear, adequate processes with firm deadlines have not been set out, leaving facilities leasing requesters at the mercy of an incumbent's ability to delay by delaying negotiations.

With the publicity of late concerning call termination rates, it would not have been out of the question to expect a more robust and sound set of interconnection and facilities leasing regulations to have been published by ICASA at this time.  Alas.  If these regulations are enacted tomorrow - they will do little to increase wholesale access at reasonable prices.  So, if you care about access issues, it is time to make your voice heard again.  Comment is due 21 Jan 2010.

Tags: "facilities leasing"  regulations 
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