6.1.1 All provisions in this section apply to Facilities-based Licensees. In this section, the term “Licensee” refers to Facilities-based Licensees.
Over-view
6.1.2 In general, a Licensee is not required to “share” the use of any infrastructure that it controls with its competitors. Rather, each Licensee is expected to build or lease the use of the infrastructure that it requires. However, where IDA finds that specific infrastructure constitutes Critical Support Infrastructure as defined in section 6.4.1 of this Code, or where IDA concludes that it is in the justified public interest, IDA may mandate, under section 22 of the Telecommunications Act, that a Licensee share the use of the infrastructure with other Licensees.
Definition of Sharing
6.2.Infrastructure sharing refers to an arrangement under which a Licensee that controls infrastructure used to support the provision of telecommunication services allows other Licensees to jointly use the same infrastructure, at cost-based prices, on non-discriminatory terms and conditions. For example, if one Licensee controls a particular “leaky feeder” cable for provision of radio coverage in the Mass Rapid Transit and road tunnels, and if IDA determines that the “leaky feeder” cable is subject to sharing, the Licensee would be required to allow other Licensees to jointly use that infrastructure at a cost-based price.
Procedures for Requesting Sharing
6.3.The following procedures will govern all requests to share infrastructure controlled by a Licensee:
Request to Licensee Controlling the Infrastructure
6.3.1 A Licensee (“Licensee Requesting Sharing”) that wants to share infrastructure that is controlled by another Licensee must first submit to the Licensee that controls the infrastructure a written request to negotiate an agreement to share the infrastructure (“Sharing Agreement”). The Licensees may jointly seek the assistance of IDA in negotiating a voluntary Sharing Agreement. IDA will act as a conciliator, but will not seek to impose any specific solution on the parties.
Request to IDA
6.3.2 If the Licensees are unable to reach a voluntary Sharing Agreement within 30 days after the Licensee Requesting Sharing sends the request to the other Licensee, the Licensee Requesting Sharing may (but is not required to) submit a written request to IDA (“Sharing Request”). The Licensee Requesting Sharing must provide a clear explanation of the specific infrastructure that it seeks to share, the means by which it proposes to share it, and the reasons why it believes it should be given a right to share the infrastructure at cost-based prices. The Licensee Requesting Sharing must provide the Licensee that controls the infrastructure with a copy of the Sharing Request at the same time that the Licensee Requesting Sharing provides the Sharing Request to IDA.
Response by Licensee
6.3.3 Unless IDA dismisses the Sharing Request on its own motion, the Licensee that controls the infrastructure will have 15 days from the date on which the Sharing Request is filed with IDA to submit to IDA a written reply. The Licensee must simultaneously provide a copy of the reply to the Licensee Requesting Sharing. The Licensee must respond to all points made by the Licensee Requesting Sharing, and must provide a full explanation as to the reasons why it does not believe it should be required to share the requested infrastructure at cost-based prices, or,if the Licensee acknowledges that it should be required to share the requested infrastructure at cost-based prices, a full explanation as to the reasons why it has been unable to reach agreement regarding prices, terms and conditions of sharing.
Timing of IDA Decision
6.3.4 IDA may request either Licensee to submit additional information, subject to suitable protections for proprietary or commercially sensitive information. IDA may also seek public comments. Within 30 days of receiving all necessary information, IDA will issue a direction as to whether the Licensee that controls the infrastructure is required to share it with the Licensee Requesting Sharing.
Standards by Which IDA Will Determine Whether to Require Sharing
6.4.IDA will use the following standards to determine whether the infrastructure must be shared:
Critical Support Infrastructure
6.4.1 IDA will require sharing of any infrastructure that it determines is Critical Support Infrastructure (“CSI”). IDA will not deem infrastructure to be CSI based solely on evidence that allowing the Licensee Requesting Sharing to share the infrastructure would reduce its costs, or increase the speed with which it could provide telecommunication services. Rather, IDA will only deem the infrastructure to constitute CSI if it concludes that: the infrastructure is required to provide telecommunication services; an efficient new entrant would not be able to replicate the infrastructure within the foreseeable future, or obtain it from a third-party through a commercial transaction, at a cost that would allow market entry; the Licensee that controls the infrastructure has sufficient current capacity to share with the Licensee Requesting Sharing; the Licensee that controls the infrastructure has no legitimate business justification for refusing to share the infrastructure with the Licensee Requesting Sharing; and that failure to share the infrastructure would limit competition.
Public Interest
6.4.2 In certain cases, IDA may determine that the public interest requires that infrastructure be shared. For example, the deployment of certain types of infrastructure by multiple Licensees could have significant adverse environmental impact. Therefore, even if such infrastructure does not constitute CSI, IDA in consultation with other government agencies, where appropriate may require the sharing of such infrastructure.
Designation of Infrastructure That Must be Shared
6.5.The following types of infrastructure must be shared at cost-based prices: masts; poles; towers; “leaky feeder” cable; in-building cabling (where the occupant elects to take service from another service provider); and lead-in ducts and associated manholes.
Implementation of IDA Direction
6.6.The following procedures must be used to implement IDA’s direction to require sharing:
Voluntary Negotiations
6.6.1 Once IDA has directed that specific infrastructure must be shared, a Licensee that controls such infrastructure must, when requested by a Facilities-based Licensee, negotiate a Sharing Agreement. The parties must negotiate in good faith.
IDA Dispute Resolution Procedures
6.6.2 If the Licensees are unable to reach a mutually acceptable Sharing Agreement within 30 days after the date on which IDA issues its direction, the Licensee Requesting Sharing may request IDA to resolve the dispute in accordance with the procedures specified in subsections 5.5.6-5.5.6.7 of this Code. Pending resolution of the dispute, IDA may direct infrastructure sharing on an interim basis.
Compensation for Sharing
6.6.3 Where the Licensees are not able to reach agreement regarding compensation for infrastructure sharing, IDA will establish cost-based rates using the costing methodology described in Appendix One, where appropriate.