July 6, 2021

Where the sharing of an infrastructure such as Rights of Way and Electric power is precedent upon securing the necessary approval of a granting authority, such approval should be obtained before the sharing arrangement can be finalized

In a bid to promote fair competition in the communications industry, and encourage infrastructure sharing among its licensees, the Nigerian Communications Commission, NCC, has released guidelines on co-location and infrastructure sharing.

The commission said that the “guidelines are designed and developed to encourage co-location and infrastructure- sharing between Access Providers and Access Seekers within a predetermined framework to remove uncertainty and create an environment for better co-operation.”

Infrastructure amenable to sharing are those that can be shared without an attendant risk of lessening of competition

Assets to be shared include passive infrastructure namely: Right of Way, masts, (iii) poles, (iv)antenna mast and tower structures, (v)ducts, (vi)trenches, (vii)space in buildings, (viii)Electric power (public or private source).

Others are active infrastructure including complete network structures, switching centers, frequencies, radio network controllers and base stations.

According to the guideline, “where the sharing of an infrastructure such as Rights of Way and Electric power is precedent upon securing the necessary approval of a granting authority, such approval should be obtained before the sharing arrangement can be finalized.”

The commission, however, exempted certain infrastructure from the sharing menu.

“National Roaming considerations shall not form part of any infrastructure sharing arrangements made pursuant to these guidelines, but shall be negotiated under the relevant regulatory framework specific to National Roaming, “ the NCC said.

The guideline listed certain procedures that must be followed in the course of negotiation for co-location and infrastructure sharing. They include:

• 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.
• All negotiations for infrastructure sharing must be done with the utmost good faith. The owner of a facility must not: “Obstruct or delay negotiations or resolution of disputes; refuse to provide information relevant to an agreement including information necessary to identify the facility needed and cost data; refuse to designate a representative to make binding commitments.
• 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.
• 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.
• 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.

The guidelines also listed terms and conditions for sharing to include:

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.

Every Access Provider shall reserve the right to refuse an application for infrastructure sharing on grounds of: Insufficient capacity, Safety, reliability ,incompatibility of facilities, General engineering considerations, and 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.