64 No. 28743 Act No. 36, 2005 GOVERNMENT GAZETTE, 18 APRIL 2006 ELECTRONIC COMMUNICATIONS ACT, 2005 (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 financially feasible; and (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 (c) refer the dispute to the Complaints and Compliance Committee for resolution on an expedited basis in accordance with the procedures prescribed in terms of section 46. (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. (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). (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— (i) leasing; (ii) selling; or (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 to be determined by the Minister after consultation with relevant parties. 5 10 15 20 25 30 35 40 45 50 55