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Essentially still a mystery

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The laws governing the telecoms industry define what should be considered as essential facilities, says the Independent Communications Authority of SA (ICASA).

After three years of waiting, the regulator has released regulations on facilities leasing. However, no indication of what it considers essential facilities was included in the document.

It has since clarified that all communications facilities defined by the Electronic Communications Act (ECA) can be considered essential.

This is despite a long-standing industry dispute on what defines an essential facility. The first list of essential facilities has been disputed since 2005, and the regulator is tasked by the ECA to provide a definition of these services.

Essential facilities are those services that are typically difficult to roll out and have a high cost of ownership. Most often, these services are controlled by the incumbents. However, there has been no consensus on what the industry believes are essential facilities.

As it stands, the ECA's list of communications services are: wire; cable, which includes undersea and land-based fibre; antenna; mast;satellite transponder;circuit;cable landing station;international gateway;earth station; and radio apparatus.

ICASA's draft list in 2007 clarified that only some of these should be considered essential. “These included backhaul circuit, cable landing stations, co-location space, earth stations, international gateways, land-based fibre cable, main distribution frame and undersea-based cables,” says ICASA.

However, much has changed in the industry since then and the list will likely have a different look now, with the considerable changes to the industry since 2007. Mobile operators are supplementing backhaul with their own network infrastructures, and will soon be free of Telkom's leases on the infrastructure.

ICASA says an essential facility is generally characterised by requiring high upfront investment costs, long lead times and is not easily replicable. The regulator points to the cable landing stations, which SA now has two of and is expecting more.

“It is important to note that the declaration of a facility as 'essential' is relative to its availability. Until recently, licensees had no choice but to use the SAT3 cables provided by Telkom for international voice and data traffic. However, Seacom began providing services last year, with the Eassy cable reportedly to be open for commercial service in the second quarter of this year.”

The regulator says the choice given to South African providers through the additional undersea cables and landing stations could mean they no longer need to be considered essential facilities.

The regulator has not indicated when it will have the list of facilities finalised. However, using the facilities leasing regulations, service providers are forced to provide fair access to all facilities, if another provider requests access to it, it adds.

Related story:
Silence on essential facilities

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