By Clifford Agugoesi, Editor-in-Chief
With firm eyes on its statutory responsibility under the Nigerian Communications Act 2003,telecommunications sector regulator, the Nigerian Communications Commission(NCC) has moved to institute guidelines for Co-location and Infrastructure Sharing (C/IS) with the aim of promoting fair competition in the communications industry, and encourage and promote infrastructure sharing among its licensees. As is the case with the guidelines on National Roaming, released June 2021, the guidelines on C/IS has on it, the signature of Nigeria’s chief telecoms regulator, Professor Umar Garba Danbatta. Danbatta is Executive Chairman and Chief Executive Officer(EVC/CEO) of NCC.
According to the Commission, “these Guidelines are to be read subject to the Act, the Telecommunications Networks Interconnection Regulations, Competition Practices Regulations, Quality of Service Regulations, other laws, rules and subsidiary legislations that may be developed by the Commission from time to time and relevant Licence Conditions.”
Objectives of the Guidelines
As per the NCC, the Primary object of these Guidelines is to establish a framework within which Access Providers and Access Seekers can negotiate C/IS arrangements, and for that purpose, specifically to –
(a) Ensure that the incidence of unnecessary duplication of infrastructure is minimised or completely avoided;
(b) Protect the environment by reducing the proliferation of infrastructure and facilities installations;
(c) Promote fair competition through equal access being granted to the installations and facilities of operators on mutually agreed terms;
(d) Ensure that the economic advantages derivable from the sharing of facilities are harnessed for the overall benefit of all telecommunications stakeholders;
(e) Minimise capital expenditure on supporting infrastructures and to free more funds for investment in core network equipment.
(f) Encourage Access Providers and Access Seekers to pursue a cost-oriented policy with the added effect of a reduction in the tariffs chargeable to consumers.
Types of Infrastructure Amenable to Sharing
NCC says infrastructure amenable to sharing are those that can be shared without an attendant risk of lessening of competition.
Accordingly, the guidelines say the Commission shall encourage and promote the sharing of the following infrastructures:
(A) Passive Infrastructure
(i) Rights of Way,
(iv) Antenna mast and tower structures,
(vii) Space in buildings,
(viii) Electric power (public or private source), and
(B) Active Infrastructure
(i) Complete network structures,
(ii) Switching centers,
(iv) Radio Network controllers,
(v) Base stations.
The Commission reserves the right to review all infrastructure sharing agreements and arrangements to ensure consistency with the relevant Licence(s), and reduce the risk of a lessening of competition. Where the Commission;
* Determines that an infrastructure sharing arrangement is inconsistent with the relevant Licence(s), and/or
* Identifies a risk of lessening of competition as a consequence of such infrastructure sharing, It may require such an arrangement to be discontinued, or that the agreement should be revised.
Procedure for Negotiating C/IS
(1) Any Access Provider who owns or has control of a facility amenable to sharing may enter into negotiations with an Access Seeker who submits a request to share the use of that facility.
(2) All negotiations for infrastructure sharing must be done with the utmost good faith. The owner of a facility must not:
(a) Obstruct or delay negotiations or resolution of disputes;
(b) Refuse to provide information relevant to an agreement including information necessary to identify the facility needed and cost data;
(c) Refuse to designate a representative to make binding commitments.
(3) A request for infrastructure sharing should be in writing. A party to whom such a request is made should within 15 days either accede to the request to grant access for sharing, or where access is denied, advance reasons in writing for the denial.
(4) Except in emergency situations, the replacement of a shared facility, or its modification, may only be undertaken upon due service of a 60 days’ notice on the other party.
(5) A party on whom notice is served may file a petition against the removal or modification of a facility within 15 days of receiving such notice, and the notifying party may file a reply thereto within 7 days.
Terms and Conditions for Infrastructure Sharing
(1) An Access Provider shall provide capacity to other operators on a “first-come, first served” basis, determined in accordance with the order in which the operator owning or having control over a facility, receives requests for infrastructure sharing.
(2) Every Access Provider shall reserve the right to refuse an application for infrastructure sharing on grounds of;
(a) Insufficient capacity,
(b) Safety, reliability, incompatibility of facilities,
(c) General engineering considerations, and
(d) Subsisting indebtedness of Access Seeker to Access Provider on similar infrastructure sharing arrangements, provided this ground for refusal shall not apply to Co-location in respect of interconnection.
(3) The decision to refuse an application for infrastructure sharing shall be communicated in writing to the Access Seeker specifying the reasons for such refusal.
(4) Every infrastructure sharing agreement, including any prior existing agreement, shall be in writing and shall specify the contractual terms and conditions agreed on by the parties.
All such agreements shall be registered with the Commission.
(5) As a precondition for registration, every infrastructure sharing agreement shall be submitted to the Commission for review and approval.
6) The Commission shall in reviewing infrastructure sharing agreements ensure that the terms on which infrastructure sharing is offered are in compliance with the principles of neutrality, transparency, non-discrimination and fair competition.
(7) Every Infrastructure sharing agreement that has been duly negotiated and executed by parties shall be submitted to the Commission within seven (7) working days for review and approval. The Commission shall, within twenty-one (21) working days, review and approve the agreement, provided that all information requested by the Commission are received.
(8) Prices for infrastructure sharing should be non-discriminatory, reasonable, and based on the actual costs incurred by the owner of the facility.
(9) Determination of the costs underlying prices should be transparent and neutral.
The guidelines further specify the procedure for Active Infrastructure Sharing, Technical Considerations, Process Considerations, Operational and Maintenance Considerations, Engineering Considerations, Commercial Considerations.
Part VI deals with the Role of the Commission.
Under Dispute Resolution:
(1) The Commission has the power to intervene to resolve dispute at the request of either party and to impose facility sharing or co-location arrangements between operators after consultation with the parties.
(2) The power of the Commission to intervene in disputes shall include the right to request for and receive all such necessary information as may be required to reach a decision.
(3) The decision of the Commission which shall be final, save for the right to judicial review by a court of competent jurisdiction, will be notified to the parties.
(4) In resolving disputes, the Commission shall rely on the provisions of Sections 75 and 76 of the Act and the Dispute Resolution Guidelines.
Under Supportive Action:
(1) The Commission will from time to time arrange for the dissemination of pertinent information on the subject of infrastructure sharing and co-location.
(2) The Commission will use its mandate under Section 4 (1) of the Act to further the opportunities for co-location and infrastructure sharing, provided there is no risk of the lessening of competition. In particular, the Commission will take action to:
(a) Encourage redevelopment of existing facilities amenable to infrastructure sharing to increase their capacity;
(b) Advise local and regional authorities on the adoption of schemes which would encourage the sharing of infrastructure;
(c) Support the development of the capability among operators to deal with the issues of infrastructure sharing in a competent way.
With respect to Review/Modification:
The Commission reserves the right to review/vary and modify these Guidelines from time to time, in accordance with the provisions of the Act.
In general, Part I of the regulatory instrument deals with Introduction, Background , Status of the Guidelines and Objectives of the Guidelines.
Part II zeroes in on Infrastructure Sharing, Types of Infrastructure Amenable to Sharing , Types of Infrastructure Not Amenable to Sharing, Procedure for Negotiating C/IS , Terms and Conditions for Infrastructure Sharing.
Part III focuses on Co-location, and Co-location as an Element of Interconnection
Part IV looks at General Rules for Co-location/Infrastructure Sharing (C/IS), Reference Offer and Standard Practice List, Allocation of Capacity, Refusal of Access, Reservation of Capacity, Redevelopment/Re-Location, Separation, Standardisation.
Part V dwells on General Rules for Active Infrastructure Sharing , Introduction , General Terms and Conditions for Active Infrastructure Sharing , Procedure for Active Infrastructure Sharing , Technical Considerations , Process Considerations , Operational and Maintenance Considerations , Engineering Considerations , Commercial Considerations
Part VI highlights the Role of the Commission, Dispute Resolution, Supportive Action, Review/Modification, Definitions.
Schedule 1, Schedule 2 and Schedule 3 round off the regulatory instrument.
It will be recalled that before the coming into being of these guidelines, some form of infrastructure sharing has been going on among network service providers, but the C/IS regime serves to intitutionalise the guidelines and entrench them into the national network.