| (1) | The Authority must prescribe regulations to facilitate the conclusion of electronic communications facilities leasing agreements by stipulating electronic communications facilities leasing agreement principles and such regulations may include the regulations referred to in section 47. |
| (2) | Electronic communications facilities leasing regulations and electronic communications facilities leasing agreement principles must provide for a framework which may include a reference electronic communications facilities leasing offer containing model terms and conditions for electronic communications facilities listed in section 43(8). |
| (3) | Matters which the electronic communications facilities leasing regulations may address include but are not limited to— |
| (a) | the time frame and procedures for— |
| (i) | the negotiation of electronic communications facilities leasing agreements; |
| (ii) | the conclusion of electronic communications facilities leasing agreements; and |
| (iii) | the technical implementation of the electronic communications facilities leasing agreements; |
| (b) | the quality, performance and level of service to be provided, including time to repair or restore, performance, latency and availability; |
| (c) | subject to and in accordance with section 47, wholesale electronic communications facilities leasing rates and the manner in which the structure of fees and charges for such electronic communications facilities leasing must be determined; |
| (d) | the sharing of technical information including obligations imposed in respect of the disclosure of current and future electronic communications network planning activities; |
| (e) | contractual dispute resolution procedures; |
| (f) | billing and settlement procedures; |
| (g) | the list of electronic communications facilities contemplated in section 43(8) as reviewed and modified as contemplated in section 43(9); |
| (h) | services associated with leasing electronic communications facilities such as support systems, collocation, fault reporting, supervision, functionality, unbundling, and co-operation in the event of fault; |
| (i) | access and security arrangements; |
| (j) | the framework in accordance with which an electronic communications network service licensee may refuse a request to lease electronic communications facilities due to such electronic communications network service licensees’ planned expansion of its electronic communications network; |
| (k) | the framework for determining technical and economic feasibility and promotion of efficient use of electronic communications networks and provision of services contemplated in section 43(4); |
[Section 44(3)(k) substituted by section 23(a) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]
| (m) | the manner in which unbundled electronic communications facilities are to be made available. |
| (4) | Where the regulations require negotiations with an applicant in terms of subsection (3)(1), a reference in this Chapter to a licensee seeking to lease electronic communications facilities must be considered to include such applicant. |
| (5) | The electronic communications facilities leasing regulations may include a framework for the exemption (in whole or in part) of electronic communications network service licensees that have less than 25% market share from the obligation to lease electronic communications facilities in terms of section 43(1). |
[Section 44(5) substituted by Section (23)(b) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]
| (6) | Where a licensee is exempt from the obligation to lease electronic communications facilities in terms of subsection (5) and such exempted licensee enters into an electronic communications facilities leasing agreement with another exempted licensee, or a person providing services pursuant to a licence exemption, section 43(7) and section 45(2) and (7) do not apply to any such electronic communications facilities leasing agreement. |
[Section 44(6) substituted by Section (23)(b) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]
| (7) | Despite a finding of significant market power, for purposes of promoting investment in new fibre electronic communications networks, the Authority may exempt an electronic communications network service licensee from the obligation to lease fibre loops and sub-loops serving residential premises if the electronic communications network service licensee meets the following requirements: |
| (a) | The new fibre loops and sub-loops, as applicable, have been, or will be, constructed and placed in operation after the coming into force of this Act; |
| (b) | the new fibre loops and sub-loops, as applicable, are, or will be— |
| (i) | constructed in, and serve, a geographic area that, at the time of construction, is not then served by the electronic communications network service licensee and such electronic communications network service licensee has no obligation to serve such geographic area; or |
| (ii) | constructed in, and serve, a geographic area that, at the time of construction, is then served by the electronic communications network service licensee and such electronic communications network service licensee maintains and continues to support its existing electronic communications facilities in the geographic area and to make such existing electronic communications facilities available for lease in accordance with the obligations under this Chapter and electronic communications facilities leasing regulations; and |
| (c) | the electronic communications network service licensee has not entered into any exclusive arrangement with the owner of the property, local authority or any other person or persons exercising control over the geographic area or parts thereof barring or impeding the construction of competing electronic communications networks in the geographic area. |
