Guidelines n Cllcatin and Infrastructure Sharing Issued by the Nigerian Cmmunicatins Cmmissin Part I: Intrductin 1. Backgrund (1) The Cmmissin has respnsibility under the Act t Prmte fair cmpetitin in the cmmunicatins industry, and encurage and prmte infrastructure sharing amng its licensees. Develp guidelines fr Cllcatin and Infrastructure Sharing ( C/IS ). (2) These Guidelines prceed frm a premise that all Access Prviders and Access Seekers have the liberty t negtiate C/IS arrangements in accrdance with mutually agreed terms. (3) These Guidelines are designed and develped t encurage C/IS amng telecmmunicatins peratrs within a predetermined framewrk t remve uncertainty and create an envirnment fr better c-peratin. (4) Additinally, these Guidelines explain the Cmmissin s rle in achieving the mst efficient use f facilities amenable t sharing. 2. Status f the Guideline These Guidelines are t be read subject t the Act, the Telecmmunicatins Netwrks Intercnnectin Regulatins and ther relevant laws, and in cnjunctin with the License Cnditins. 3. Objectives f the Guidelines (1) The Primary bject f these Guidelines is t establish a framewrk within which peratrs can negtiate C/IF arrangements, and fr that purpse, specifically t - Ensure that the incidence f unnecessary duplicatin f infrastructure is minimized r cmpletely avided; Prtect the envirnment by reducing the prliferatin f infrastructure and facilities installatins;
(d) (e) (f) Prmte fair cmpetitin thrugh equal access being granted t the installatins and facilities f peratrs n mutually agreed terms; Ensure that the ecnmic advantages derivable frm the sharing f facilities are harnessed fr the verall benefit f all telecmmunicatins stakehlders; Minimize capital expenditure n supprting infrastructures and t free mre funds fr investment in cre netwrk equipment. Encurage peratrs t pursue a cst-riented plicy with the added effect f a reductin in the tariffs chargeable t cnsumers. Part II: Infrastructure Sharing 4. Types f Infrastructure Amenable t Sharing (1) Infrastructures amenable t sharing are thse that can be shared withut an attendant risk f lessening f cmpetitin. (2) The Cmmissin shall encurage and prmte the sharing f the fllwing infrastructures: (d) (e) (f) (g) (h) Rights f way. Masts. Ples. Antenna mast and twer structures. Ducts. Trenches. Space in buildings. Electric pwer (public r private surce). (3) Where the sharing f an infrastructure such as Rights f Way and Electric pwer is precedent upn securing the necessary apprval f a granting authrity, such apprval shuld be btained befre the sharing arrangement can be finalized. (4) The Cmmissin may frm time t time either n its wn initiative r upn the request f any interested persn add t the list f infrastructure that can be shared. 5. Types f Infrastructure Nt Amenable t Sharing (1) The Cmmissin will nt encurage and prmte sharing f the fllwing infrastructures: (d) Cmplete netwrk structures. Switching centers. Radi netwrk cntrllers. Base statins. (2) Specifically and fr the avidance f dubt, natinal raming shall nt frm part f issues which may be negtiated and agreed upn by telecmmunicatins peratrs under infrastructure sharing arrangements. 2
(3) The Cmmissin may frm time t time add t the list f infrastructure in respect f which sharing is discuraged. (4) The Cmmissin shall at all times reserve the right t examine incidence f infrastructure sharing t ensure cnsistency with the relevant License(s) and reduce the risk f a lessening f cmpetitin. (5) Where the Cmmissin Determines that an infrastructure sharing arrangement is incnsistent with the relevant License(s) and/r Identifies a risk f lessening f cmpetitin as a cnsequence f such infrastructure sharing, It may require such an arrangement t be discntinued. 6. Prcedure fr Negtiating C/IS (1) Any peratr wh wns r has cntrl f a facility amenable t sharing may enter int negtiatins with anther peratr wh submits a request t share in the use f that facility. (2) All negtiatins fr infrastructure sharing must be dne with the utmst gd faith. The wner f a facility must nt; Obstruct r delay negtiatins r reslutin f disputes; Refuse t prvide infrmatin relevant t an agreement including infrmatin necessary t identify the facility needed and cst data; Refuse t designate a representative t make binding cmmitments. (3) A request fr infrastructure sharing shuld be in writing. A party t whm such a request is made shuld within 30 days either accede t the request and grant access fr sharing, r where access is denied, advance reasns in writing fr the denial. (4) Except in emergency situatins, the replacement f a shared facility, r its mdificatin, may nly be undertaken upn due service f a 60 days ntice n the ther party. (5) A party n whm ntice is served may file a petitin against the remval r mdificatin f a facility within 15 days f receiving such ntice, and the ntifying party may file a reply theret within 7 days. 3
7. Terms and Cnditins fr Infrastructure Sharing (1) An peratr shall prvide capacity n its infrastructure t ther peratrs n a first-cme, first served basis, determined in accrdance with the rder in which it receives requests fr infrastructure sharing. (2) An peratr shall reserve the right t refuse an applicatin fr infrastructure sharing n grunds f; Insufficient capacity Safety, reliability, incmpatibility f facilities and General engineering cnsideratins. (3) The decisin t refuse an applicatin fr infrastructure sharing shall be cmmunicated in writing t the requesting peratr specifying the reasns fr such refusal. (4) Every infrastructure sharing agreement, including any prir existing agreement, shall be in writing and shall specify the cntractual terms and cnditins agreed n by the parties. All such agreements shall be registered with the Cmmissin. (5) The terms n which infrastructure sharing is ffered shuld be in cmpliance with the principles f neutrality, transparency, nn-discriminatin and fair cmpetitin. (6) Prices fr infrastructure sharing shuld be nn-discriminatry, reasnable, and based n the actual csts incurred by the wner f the facility. (7) Determinatin f the csts underlying prices shuld be transparent and neutral. Part III: Cllcatin 8. Cllcatin as an Element f Intercnnectin (1) Cllcatin is an element f the intercnnectin f netwrks hence it is essential that peratrs agree n terms f its implementatin twards ensuring seamless intercnnectivity. Cllcatin shall cnstitute part f the negtiatins fr intercnnectin and be gverned by prvisins f the Telecmmunicatins Netwrk Intercnnectin Regulatins. (2) Every majr peratr, especially dminant peratrs as may be determined by the Cmmissin shuld include in their Reference Intercnnectin Offer (RIO) an ffer fr the facilities available fr cllcatin, including a price list fr the different cmpnents f cllcatin. 4
(3) An peratr desirus f intercnnecting with anther peratr is at liberty t chse the type f cllcatin suitable fr its peratin. (4) Where a request is made fr physical cllcatin but such cllcatin is nt deemed feasible, virtual cllcatin shuld be ffered by the intercnnectin prviding peratr. (5) Where virtual cllcatin is nt feasible, remte cllcatin shuld be ffered in its stead. (6) A request fr remte cllcatin shall nt be rejected n any grunds. (7) Specifically, remte cllcatin shall nt be refused n grunds f insufficient capacity, safety cnsideratins, reliability r ther general engineering cnsideratins. (8) Save as may be specifically excluded, the terms and cnditins f cllcatin are in general t be gverned by the same rules as infrastructure sharing. (9) The prvisins f these Guidelines, particularly Part II Paragraph 7 and Part IV, apply t bth cllcatin and infrastructure sharing. Part IV: General Rules fr Cllcatin/Infrastructure Sharing (C/IS) 9. Reference Offer and Standard Practice List (1) The Cmmissin recgnizes the right f peratrs t negtiate and agree n terms and cnditins f cllcatin and Infrastructure sharing(c/is). The Cmmissin hwever requires that such negtiatin must be within the limits f an existing reference ffer develped by each peratr. (2) Every peratr shall ensure that its reference ffer is readily available t ther peratrs with a view t prmting fairness in the negtiatin prcess. (3) Operatrs shuld in the prcess f develping the reference ffer be respnsive and wrk in clse assciatin with ther peratrs, that is, prspective access seekers. (4) Ntwithstanding the prvisins f sub-paragraph (1) abve, parties invlved in any negtiatin fr C/IS arrangement are at liberty t negtiate utside the reference ffer prvided hwsever that such negtiatins are vluntary and nn-discriminatry. (5) The reference ffer shuld cntain sufficient infrmatin n issues relevant t the access seeker fr negtiatin purpses as itemized in the First Schedule t these Guidelines. 5
(6) Parties may request fr ther infrmatin which may be required in the prcess f negtiating fr C/IS. Such infrmatin shuld be treated as cnfidential by the requesting party at all times. (7) The quality and nature f any infrmatin requested fr will depend n what stage the negtiatin prcess has reached. Respnse n any such request shuld be prmpt t avid delay. (8) A party may request fr a site inspectin if it is deemed necessary fr the purpse f aiding that party t reach an infrmed decisin. (9) Every peratr shuld develp a standard price list which shall prvide guidance fr determining the price fr all C/IS arrangements with ther Access Seekers. (10) Any standard price list develped shuld be reasnable, nndiscriminatry and cst-riented. 10. Allcatin f Capacity (1) There shall be n bligatin n an peratr t develp new infrastructure whenever its capacity has reached saturatin level. Hwever, peratrs are expected t reasnably take int cnsideratin the demand fr C/IS when expanding their facilities. (2) Where there is n available capacity at the existing facilities t meet the needs f additinal requests fr capacity, the peratr shuld cnsider redevelpment as a means f increasing capacity at existing facilities. (3) The Cmmissin will cnsider that capacity is available where the specific resurce is nt ccupied nr reserved by the peratr. (4) In every situatin where a cllcatin request is granted, the grantr shuld have the reserved right in the event f scarcity t demand that any allcated capacity be relinquished if such capacity has nt been utilized within three (3) mnths f delivery f access. This right shuld be reserved with the intent t avid the pre-emptin f future capacity needs n the part f a requesting peratr which wuld stifle the present needs f ther peratrs. (5) At the expiratin f the perid fr which access was granted t a party, an applicatin fr a further extensin f the perid will be in accrdance with the prcedure used fr the initial applicatin. The applicatin will be cnsidered n the merit by the access prvider. (6) In every case, applicatins fr cllcatin shuld be cnsidered and granted by an peratr n a first cme first served basis. 6
11. Refusal f Access t Cllcate (1) An peratr reserves the right t refuse an applicatin fr access in any f the fllwing circumstance Where the peratr des nt have available capacity (i.e. either that all capacity is ccupied r reserved Where the grant f access is technically unfeasible Where the request, if granted, will breach safety and reliability standards In all cases, the peratr shuld prvide the requesting peratr with reasn fr refusal in writing. (2) An peratr wh is refused cllcatin may refer such refusal t the Cmmissin and the Cmmissin shall be at liberty t inquire int the decisin refusing access. (3) The Cmmissin may upn due cnsideratin; Up hld a decisin refusing access Request that a decisin refusing access shuld be recnsidered Impse an infrastructure sharing arrangement n the parties. (4) Infrastructure sharing arrangements impsed by the Cmmissin may include rules fr apprtining the csts f facility sharing 12. Reservatin f Capacity (1) The right f an peratr t reserve capacity fr which it has made lng term investments will at all times be recgnized but balanced against the need nt t hamper the netwrk rll-ut r expansin plans f new market entrants r ther peratrs. (2) Where available capacity is limited, the right t reserve capacity shuld nt be exercised by an peratr in rder t avid discriminatin and pre-emptin. (3) Where hwever an peratr with significant investments exercises the ptin t reserve sme rights in circumstances f limited capacity; The reserve perid shall nt exceed tw (2) years after which the right will cease frm being peratinal. 7
Nt mre than 50% f capacity shall be reserved. (4) Infrmatin and dcumentary evidence f the reservatin and extent theref shuld be held by the peratr and made available t ther peratrs n reasnable demand. 13. Re-Develpment/Re-Lcatin (1) T ensure that capacity is increased and made available t thers, peratrs are encuraged t cnstantly pursue a plicy f re-develpment and re-lcatin f facilities. (2) Where fr ptimal utilizatin f facilities an peratr undertakes redevelpment r re-lcatin (i.e. recnfiguratin f netwrk as a result f technlgical r business reasns), the cst f the re-develpment r re-lcatin may be jintly assessed by the parties and shared with access seekers at a percentage mutually agreed by parties. (3) The re-develpment r re-lcatin cst brne by a cllcatr shall frm part f the price paid fr the C/IS arrangement. (4) A party t a C/IS arrangement shuld nt undertake mdificatins with the sle aim f demanding the cst f such mdificatin frm cllcatrs. (5) As a cnditin precedent fr an peratr t cmmence any redevelpment r re-lcatin at any facility, ntice theref shuld first be given t all peratrs sharing the facility with the peratr. The ntice perid shuld be 6 mnths in the case f re-develpment 12 mnths in the case f re-lcatin 14. Separatin (1) The Cmmissin expects that parties invlved in all C/IS arrangements, will make efficient use f scarce space. (2) Parties negtiating fr cllcatin will be at liberty t request fr separatin f equipment t increase internal and external security, reduce interference prblems and limit damage t each thers equipment. (3) The degree t which separatin f equipment will be granted t an peratr will be determined, amng ther things, by Prevailing lcal circumstance Available space Special requirements f access seekers 8
(d) (e) Level f standardizatin Risk f damage 15. Standardizatin (1) T facilitate imprved c-rdinatin and cmpatibility f equipment, parties t a C/IS arrangement shuld endeavr t develp and emply standard prcedures fr prvisin and peratins under the arrangement. (2) The standard prcedures t be develped by parties under the arrangement will be in the areas f: (d) (e) (f) (g) Maintenance Fault clearance Access at the facility Emergency Cleaning Safety Security (3) Parties are als t ensure that standardized equipment and unified techniques/technical interfaces are used fr the C/IS. (4) The liberty t use assigned space fr its wn purpse ntwithstanding, parties shuld nt install incmpatible equipment which may cause interference t ther parties equipment r impede usage f space allcated t them. Part V: The Rle f the Cmmissin 16. Dispute Reslutin (1) The Cmmissin has the pwer t intervene t reslve dispute at the request f either party and t impse facility sharing r cllcatin arrangements between peratrs after cnsultatin with the parties. (2) The pwer f the Cmmissin t intervene in disputes shall include the right t request fr and receive all such necessary infrmatin as may be required t reach a decisin. (3) The decisin f the Cmmissin which shall be final, save fr the right f appeal t a curt f cmpetent jurisdictin, will be ntified t the parties and published. 9
(4) In reslving disputes, the Cmmissin will rely n its Dispute Reslutin Guidelines. 17. Supprtive Actin (1) The Cmmissin will frm time t time arrange fr the disseminatin f pertinent infrmatin n the subject f infrastructure sharing and cllcatin. (2) The Cmmissin will use its mandate under Sectin 4 (1) f the Act t further the pprtunities fr cllcatin and infrastructure sharing, prvided there is n risk f the lessening f cmpetitin. In particular, the Cmmissin will take actin t Encurage redevelpment f existing facilities amenable t infrastructure sharing t increase their capacity. Advise lcal and reginal authrities n the adptin f schemes which wuld encurage the sharing f infrastructure. Supprt the develpment f the capability amng peratrs t deal with the issues f infrastructure sharing in a cmpetent way. 18. Definitins In these Guidelines - Act Means the Nigerian Cmmunicatins Act, 2003; Cllcatin Means the placement f transmissin equipment wned by the intercnnectin demanding peratr in the premises f the intercnnectin prviding peratr fr intercnnectin t that peratr s netwrk; Cmmissin Means the Nigerian Cmmunicatins Cmmissin; Facility, Facilities Mean the same thing as, and are interchangeably used with the term infrastructure ; Infrastructure Sharing - Means the jint use f netwrk facilities by tw r mre peratrs subject t agreement specifying relevant technical and cmmercial cnditins. The term infrastructure sharing is mre general than the term cllcatin and unless explicitly stated therwise, infrastructure sharing refers fr the purpses f these Guidelines t the sharing f facilities that are nt feasible fr cllcatin; Operatr - Means an undertaking hlding a license granted under the Act t perate a cmmunicatins system r facility and t prvide cmmunicatins services; 10
Physical Cllcatin Means cllcatin where equipment is placed in a separate rm within the premises f the intercnnectin prviding peratr and remains under the cntrl f the intercnnecting demanding peratr; Remte Cllcatin Means cllcatin where the equipment f the intercnnectin demanding peratr is installed in a lcatin near the premises f the intercnnectin prviding peratr and a transmissin medium is used t realize the physical intercnnectin; Lessening f Cmpetitin Means the same thing as may be assigned by the Cmmissin pursuant t its pwers under Sectin 91 f the Act; Virtual Cllcatin Means cllcatin where equipment is placed in the equipment line-up f the intercnnectin prviding peratr and is maintained by that peratr. SCHEDULE CONTENTS OF REFERENCE OFFER - ISSUES RELEVANT TO THE OPERATOR REQUESTING COLLOCATION FOR NEGOTIATION PURPOSES General Sharing Issues (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xiii) Prvisining (i) Access and refusal Separatin Standardizatin Re-develpment/Re-lcatin Study and preparatry wrk Requirements f requesting peratr Cmmencement/duratin/renewal Liability Insurance Cnfidentiality Security Arbitratin Mdificatin/Terminatin Time schedules 11
(ii) Infrmatin requirements (iii) Cnstructinal specificatins (iv) Technical Specificatins (v) Delivery f Access (vi) Testing Operatin (i) Requirements n equipment (ii) Installatin f equipment (iii) Maintenance (iv) Fault clearance (v) Access cnditins f persns (d) Pricing (i) Standard prices (ii) Price cmpnents (iii) Pricing f special requirements (iv) Sharing f cmmn facilities (v) Penalties (e) Technical (i) Spurius emissins (ii) Harmnics (iii) Electrmagnetic cmpatibility (iv) Interference (v) Heat Dissipatin and thermal cnsideratins (vi) Wind lading 12