| (2) | Where the reasonableness of any request to lease electronic communications facilities is disputed, the party requesting to lease such electronic communications facilities may notify the Authority in accordance with the regulations prescribed in terms of section 44. |
| (3) | The Authority must, within 14 days of receiving the request, or such longer period as is reasonably necessary in the circumstances, determine the reasonableness of the request. |
| (4) | For purposes of subsection (1), a request is reasonable where the Authority determines that the requested lease of electronic communications facilities— |
| (a) | is technically and economically feasible; and |
[Section 43(4)(a) substituted by section 22(a) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]
| (b) | will promote the efficient use of electronic communication networks and services. |
| (5) | In the case of unwillingness or inability of an electronic communications network service licensee to negotiate or agree on the terms and conditions of an electronic communications facilities leasing agreement, either party may notify the Authority in writing and the Authority may— |
| (a) | impose terms and conditions consistent with this Chapter; |
| (b) | propose terms and conditions consistent with this Chapter which, subject to negotiations among the parties, must be agreed to by the parties within such period as the Authority may specify; or |
| (6) | For the purposes of subsection (5), unless otherwise agreed in writing by the parties, a party is considered unwilling to negotiate or unable to agree if a facilities leasing agreement is not concluded within the time frames prescribed. |
| (7) | The lease of electronic communications facilities by an electronic communications network service licensee in terms of subsection (1) must, unless otherwise requested by the leasing party, be non-discriminatory as among comparable types of electronic communications facilities being leased and not be of a lower technical standard and quality than the technical standard and quality provided by such electronic communications network service licensee to itself or to an affiliate or in any other way discriminatory compared to the comparable network services provided by such licensees to itself or an affiliate. |
[Section 43(7) substituted by section 22(b) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]
| (8) | The Authority must prescribe a list of essential facilities including but not limited to— |
| (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).
(8A)
| (a) | Requests for leasing of essential facilities are deemed to promote efficient use of electronic communication networks and services. |
| (b) | All electronic communications network services licensees receiving requests contemplated in paragraph (a) are required to agree on non-discriminatory terms and conditions of a facilities leasing agreement for those essential facilities within 20 days of receiving the request. |
| (c) | If the electronic communications network licensee can prove that the request is not technically or economically feasible within the 20 day period the electronic communications network services licensee may refuse the request. |
| (d) | If no agreement regarding the non-discriminatory terms and conditions contemplated in paragraph (b) can be reached, the Authority must impose terms and conditions consistent with this Chapter within 20 days of receiving notification of the failure to reach an agreement. |
[Section 43(8A) inserted by section 22(c) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]
| (9) | The Authority must review the list of electronic communications facilities at least once every 36 (thirty six) months and, where the Authority finds market conditions warrant it, make modifications to such list after undertaking an inquiry in accordance with section 4B of the ICASA Act. |
| (10) | An electronic communications network service licensee may not enter into any agreement or other arrangement with any person for access to, or use of, any international electronic communications facilities, including submarine cables and satellites, that— |
| (a) | contains an exclusivity provision; |
| (b) | contains provisions that create undue barriers to access to and use of such international communication facilities; or |
| (c) | otherwise restricts any party to such agreement or other arrangement from— |
| (iii) | otherwise entering into an agreement with any licensee under this Act or person providing services pursuant to a licence exemption for access to, and use of, such international electronic communications facilities. |
| (11) | Any exclusivity provision contained in any agreement or other arrangement that is prohibited under subsection (10) is invalid from a date one year after the commencement of the Electronic Communications Amendment Act, 2014. |
[Section 43(11) substituted by section 22(d) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]
