LICENCE TO OPERATE AND PROVIDE FIXED ACCESS SERVICESFOR THE UNEXPIRED DURATION OF EXISTING CELLULAR MOBILE LICENCEIN THE REPUBLIC OF GHANA
GRANTED BY THE AUTHORITY
UNDER SECTION 3(C) OF THE NATIONAL COMMUNICATIONS AUTHORITY ACT, 2008, ACT 769
TO
[LICENSEE]
Contents
PART I
ARTICLE 1THE LICENCE
ARTICLE 2DEFINITIONS AND INTERPRETATION
ARTICLE 3 SCOPE
ARTICLE 4GENERAL CONDITIONS FOR THE GRANT OF THIS LICENCE
ARTICLE 5 DURATION AND RENEWAL OF LICENCE
ARTICLE 6 ASSIGNMENT AND TRANSFER OF LICENCE
ARTICLE 7 SUSPENSION, TERMINATION AND AMENDMENT OF THE LICENCE
PART II - CONDITIONS OF LICENCE
ARTICLE 1 PAYMENT OF FEES
ARTICLE 2 GEOGRAPHIC COVERAGE
ARTICLE 3 REQUIREMENT TO FURNISH INFORMATION TO THE AUTHORITY
ARTICLE 4 EMERGENCY SITUATIONS
ARTICLE 5 APPROVAL OF INTERCONNECT CHARGES
ARTICLE 6 PROHIBITION ON UNDUE PREFERENCE AND UNDUE DISCRIMINATION
ARTICLE 7 PROHIBITION OF ANTI-COMPETITIVE CONDUCT
ARTICLE 8 PROHIBITION OF CROSS-SUBSIDIES
ARTICLE 9 SEPARATE ACCOUNTS FOR ALL SERVICES
ARTICLE 10 CODE OF PRACTICE ON THE CONFIDENTIALITY OF CUSTOMER INFORMATION
ARTICLE 11 ARBITRATION OF DISPUTES WITH CUSTOMERS
ARTICLE 12 PRE-NOTIFICATION OF CHANGES IN SHAREHOLDING
TECHNICAL CONDITIONS
ARTICLE 13 INTERCONNECTION ARRANGEMENTS
ARTICLE 14 SERVICE PROVIDERS
ARTICLE 15SUBCONTRACTING
ARTICLE 16 EXPANSION OF NETWORK CAPACITY
ARTICLE 17TECHNICAL STANDARDS AND SPECIFICATIONS
ARTICLE 18 FREQUENCY ASSIGNMENTS
ARTICLE 19 PERFORMANCE SPECIFICATIONS
ARTICLE 20 MODIFICATION, RESTRICTION AND CLOSEDOWN
ARTICLE 21 NUMBERING PLAN
ARTICLE 22 BILLING AND METERING ARRANGEMENTS
ARTICLE 23 SERVICE AGREEMENT
ARTICLE 24FORCE MAJEURE AND SERVICE INTERRUPTIONS
ARTICLE 25QUALITY OF SERVICE DELIVERY
ARTICLE 26CONTINUATION OF EXISTING OBLIGATIONS
ARTICLE 27REVOCATION
ARTICLE 28 LIMITATION OF LIABILITIES
ARTICLE29NOTICES
ANNEX A
ANNEX B
PART I
ARTICLE 1THE LICENCE
THE NATIONAL COMMUNICATIONS AUTHORITY (“THE AUTHORITY”) in accordance with the National Communications AuthorityAct, 2008, Act 769 hereby grants this Licence to [LICENSEE], to operate and provide a FIXED ACCESS SERVICES FOR the UNEXPIRED DURATION OF EXISTING CELLULAR MOBILE LICENCE IN THE REPUBLIC OF GHANA.
This Licence shall be known as the Fixed Access ServiceLicence
ARTICLE 2DEFINITIONS AND INTERPRETATION
2.1 In this Licence unless the context otherwise requires, the expressions shall have the following meanings:
“Act” / The National Communications Authority Act, 2008, Act 769 together with all amendments thereto.“Affiliate” / As used with respect to any person, any other person directly or indirectly controlling, controlled by, or under common control with, that person. For the purposes of this definition, “Control”(including, with correlative “controlling”, “controlled by” and ”under common control with”), as applied to any person, means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that person;
“Agent/Contractor/Service Provider” / Any entity that provides service for or on behalf of the Licensee
“Authority” / National Communications Authority established under the National Communications Authority Act, 2008, Act 769;
“Unified Access Service ” / A regime that allows the use of any access technology of choice for voice and non-voice services.
“Data Service” / A telecommunications service that transmits data
“ECA Act” / The Electronic Communications Act, 2008, Act 775.
“Effective Date” / The date, below-inscribed, on which this Licence is granted;
“Emergency Organization” / Ghana Police Service, Ghana National Fire Service, National Disaster Management Organization and any other designated by the Government of Ghana
“Financial Statement” / An accounting statement the purposes of which are to set out and fairly present the costs (including capital costs), revenue and financial position of the Licensee’s services including a reasonable assessment of the assets employed in and liabilities attributable to those services. The level of desegregation as between services specified in, and in relation to the financial information contained in the Statement shall be of such level as The Authority may require from time to time, after consultation with the Licensee.
“Force Majeure” / includes any of the following circumstances:
(a)acts of God, riot or civil commotion;
(b)strikes, lock-outs and other industrial disturbances;
(c)wars, blockades or insurrection;
(d)earthquake, hurricane, flood, fire or explosions;
(e)outbreak of pestilence or epidemics;
(f)government rationing of electricity or other wartime or emergency controls imposed by government; and
(g)embargoes or trade restrictions;
(h)outbreak of pestilence or epidemics
“GIFEC” / Ghana Investment Fund for Electronic Communication
“Net Revenue” / Gross Revenue less Value Added Tax (VAT), National Health Insurance Levy (NHIL),Communication Service Tax (CST) and Interconnection Charges
“ITU” / International Telecommunications Union;
“ITU-R” / International Telecommunications Union Radio communications Sector;
“The Licence” / This document, anauthority to operate and provide a Fixed access services for the un-expired duration of existing cellular mobile licence in the Republic of Ghana.
,
‘‘License Area’’ / The territory of the Republic of Ghana;
“Licensed Network” / A public telecommunications network that provides telecommunication services as defined by the ITU;
“Licensed Service” / A telecommunication services including but not limited in general to voice, data, video and other multimedia service provided through a LicensedOperator utilizing (Cellular Communication System, a Fixed Wireless Access Telecommunications System, Fixed Wireline Telecommunications System or a combination of any of these systems comprising Radio, Cable or Satellite or any combination of these technologies in the designated Licensed Area.
“Licensee” / means [LICENSEE]
“Policy” / means theNational Telecommunications Policy, 2005;
“Regulations” / means National Electronic Communications Regulations, 2011 (L.I. 1991) and any amendments thereto;
“ Renewal Fees” / means a fee payable by the Licensee on the renewal of this Licence;
“Telecommunications” / The provision of a service for telecommunications through a telecommunications system for the transmission or routing of signals or a combination of these functions.
“Telecommunications
Equipment” / Any equipment or apparatus for the purpose of or intended to be used for telecommunications as part of or comprising a telecommunications system.
“Terminal Equipment” / Any equipment designed to be connected directly or indirectly to a network termination point for the transmission, processing or reception of data.
“User” / A user of a Telecommunications Network or a Telecommunications service and includes a user that is an Operator of a Telecommunications Network and a user that is a provider of a Telecommunications Service and interconnection partners.
“Video Service” / A telecommunications service that transmits and/or convey audio-visual (video) information/contents
“Voice Service” / A telecommunications service that transmits and/or convey audio (voice) information/contents
2.2 Words importing the singular shall include the plural.
ARTICLE 3 SCOPE
3.1The Licensee is hereby authorized to establish and operate a nationwide fixed network.
3.2The Licensee shall be able to provide voice, data, video and other multimedia services using cable and/or fibre as the access technology.
3.3The Licensee is also authorized by this Licence to provide othertelecommunications services including the provision of value added services defined and approved by the Authority.
3.4This Licence is granted to provide service on a non-exclusive basis; other applicantscan also be granted Licence for the same service in the same Licence Area.
ARTICLE 4GENERAL CONDITIONS FOR THE GRANT OF THIS LICENCE
4.1 The grant of this Licence and the exercise of the Licensee’s rights in connection are subject to the following conditions and any variations thereof, in the following order of precedence
4.2 The Licensee shall obtain all necessary licenses and permits including building and other non-telecommunication permits required to build, implement, modify and remove installations and buildings in accordance with applicable laws and regulations in Ghana.
4.3 The licensee shall observe and abide by the guidelines for the deployment of communications towers, co-location,infrastructure sharing, right of ways, and green technology principles.
4.4 The licensee shall launch and commence operations within six (6) months of the Effective Date of the License,
ARTICLE 5 DURATION AND RENEWAL OF LICENCE
5.1This Fixed Access ServiceLicenseshall cover the unexpired term of the duration of the Cellular Mobile Licence.
5.2Upon the expiry of both Fixed Access and Cellular Mobile licences, the Authority shall renew and substitute these Licenseswith a Unified Access Service LicenseWhere the Licensee does not wish to renew any of the granted Licences, it shall notify the Authority not later than one (1) year prior to the expiry date(s).
5.3The Authority may, in consultation with the Licensee, and in accordance with the Act, Regulations and any existing statutory laws and regulationsvary the terms of this Licence on Unified Access Service Licence Terms.
5.4 Substitution of this Licenseto a Fixed Access Service Licence shall not take effect until the Licensee has paid all Licence Fees, Annual Regulatory Fees, and any other fees including fines owed under the individual Licence(s).
5.5.1 The Licensee materially failed to operate within the terms of this Interim FixedLicence;
5.5.2 The Licensee materially failed to pay fees, levies, sanctions, etc. imposed by the Authority
5.5.3 The Licensee breached any of the conditions in Article 4 above;
5.5.4 The Licensee failed to comply materially with any of the provisions of the Act, EC Act, Regulations and any other applicable statutory laws and regulations;
5.5.5 The Licensee failed to comply materially with any lawful direction of the Authority; or
5.5.6 The Authority determines that it is not in the public interest to renew the Licence and has given notice of not less than six (6) months to that effect to the Licensee.
ARTICLE 6 ASSIGNMENT AND TRANSFER OF LICENCE
The Licensee shall comply with the provisions of the Act, the EC Act and the Regulations with respect to assignment, sale, transfer, charge or other disposition of a significant interest in the Licence.
ARTICLE 7 SUSPENSION, TERMINATION AND AMENDMENT OF THE LICENCE
7.1This Licence is subject to suspension, termination and amendment in accordance with the provisions of the Act, the EC Act, and the Regulations.
7.2Except as provided in the Act, the EC Act, or any similar legislation, in the case of a termination of this Licence pursuant to this Article 7, no compensation shall be paid to the Licensee by the NCA
PART II - CONDITIONS OF LICENCE
ARTICLE 1 PAYMENT OF FEES
1.1 In consideration of granting this License, the Licensee shall pay to the Authority in full and without any deductions whatsoever a licence fee of Six Hundred Thousand cedis for each year of the duration of the License.
1.2 The Licensee shall pay a Regulatory fee of one percent (1%) of its Annual Net Revenue. The said regulatory fee shall be payable quarterly and by the last business day of the month succeeding the quarter for which payment is being made.
1.3 The Licensee shall pay to the Ghana Investment Fund for Electronic Communication (GIFEC), one percent (1%) of its Annual Net Revenues.
1.4 The amount payable to GIFEC shall be due and payable on the 31st March of every year.
1.5 The Licensee shall pay other applicable fees or charges or taxes.
ARTICLE 2 GEOGRAPHIC COVERAGE
The Licensee shall ensure thataccess services are provided throughout Ghana in accordance with the National Broadband Policy targets.
ARTICLE 3REQUIREMENT TO FURNISH INFORMATION TO THE AUTHORITY
3.1The Licensee shall permit The Authority to inspect and if required to make copies of records, documents and accounts relating to the Licensee’s business for the purpose of enabling the Authority to perform its functions under the Act, the EC Act and the Conditions of this Licence.
3.2Without prejudice to any other provision of this Licence, the Licensee shall furnish or procure to be furnished to the Authority, in such manner and at such times as The Authority may request, such information in the form of documents, accounts, estimates, returns and without prejudice to the generality of the foregoing, such other information as The Authority may reasonably require for the purposes of:
3.2.1exercising the functions assigned to it by or under the Act and EC Act;
3.2.2verifying that the Licensee is complying with the Licence Conditions; and
3.2.3keeping statistical records.
3.2.4In making any such request The Authority shall ensure that no undue burden is imposed on the Licensee in procuring and furnishing such information and, in particular, that the Licensee is not required to procure or furnish a report which would not normally be available to it unless The Authority considers the particular report essential for the purposes specified in Article 3.2.
4Without prejudice to the generality of Article 3.2 and notwithstanding the provisions of Article 3.3, the Licensee shall furnish to The Authority within 6 (six) months of its financial year end a Financial Statementclearly separating the account of all services. If the Authority so requests, there will be appended to the Statement a report from the Licensee’s Auditor stating whether in his opinion the methods of allocation of costs, assets and liabilities are reasonable and whether the Financial Statement has been properly prepared applying those methods.
5From time to time, The Authority may require specific details to be included in the Licensee’s Financial Statement for the purposes specified in Article 3.2 and the Licensee shall promptly comply with such requirements.
6In this Article, “documents” includes, without prejudice to the generality thereof, drawings, designs, plans, and/or standards/ specifications.
ARTICLE 4 EMERGENCY SITUATIONS
The Licensee shall provide at its own cost and by means of its transport links facilities that would enable national and international telephony service, in the event of an emergency
ARTICLE 5APPROVAL OF INTERCONNECT CHARGES
5.1 No later than thirty (30) days prior to commencementof the Licensed Services, the Licensee shall submit to the Authority the interconnect charges which set forth the Services and the Rates applicable thereto. No less than seven (7) days prior to commencing the operation of Services, the Licensee shall submit the proposed schedule of Services and applicable Rates to the Authority for filing.
5.2If any changes are to be made to the Licensee’s applicable Rates, the Licensee shall notify the Authority and within five (5) days publish the changes in two domestic newspapers of national circulation, website of the Licensee and any other media the Authority will determine from time to time, before it becomes effective.
5.3As part of the financial report required by Article 3.4 the Licensee shall report its current Rates to the Authority in a standardised format provided by the Authority. In making this report, it shall not be sufficient for the Licensee to attach a copy of its tariff; Licensee must use the standardised form established by the Authority.
5.4The charges made by the Licensee to any user for the provision of the Licensed Services for which Licensee has been classified as dominant shall be set by the Licensee in accordance with the price control mechanism as the Authority shall establish.
ARTICLE 6 PROHIBITION ON UNDUE PREFERENCE AND UNDUE DISCRIMINATION
6.1The Licensee shall not (whether in respect of charges, application of discount schemes, or other terms or conditions applied or otherwise) show undue preference to or exercise undue discrimination against any particular person or persons of any class or description in respect of:
6.1.1the provision of a service under this Licence; or
6.1.2the connection of any equipment approved by The Authority.
6.2The Licensee shall be deemed to have shown such undue preference or to have exercised such undue discrimination if inter alia it unfairly favours to a material extent a business carried on by it or by its lawful telecommunications associates in relation to any of the matters mentioned in Article 8.1 so as to place at a significant competitive disadvantage persons competing with that business.
6.3Notwithstanding the provisions of Article 6.1, the Licensee may provide the Service to a User on charges, terms and conditions that are preferential if the charge in question is in accordance with a tariff plan and terms and conditions that have been approved by The Authority as required hereunder.
6.4The sharing of infrastructure and facilities with other similarly licensed persons and the terms and conditions thereof shall be subject to the provisions of The Guidelines for the Deployment of Communication Towers and any other guidelines as may be issued by the Authority from time to time.
6.5Any question relating to whether any act done or course of conduct pursued by the Licensee amounts to such undue preference or such undue discrimination shall be determined by The Authority, but nothing done in any manner by the Licensee shall be regarded as undue preference or undue discrimination if and to the extent that the Licensee is required to do that thing in that manner by or under any provision of this Licence.
ARTICLE 7PROHIBITION OF ANTI-COMPETITIVE CONDUCT
7.1 The Licensee shall not engage in any conduct which in the opinion of the Authority has the purpose or effect of preventing or substantially lessening, restricting or distorting competition in the operation of the Service or in any market for the provision or acquisition of telecommunication installation, network, service or apparatus.
7.2The conduct which the Authority may consider as the relevant purpose or effect referred to in Article 7.1 includes but is not limited to:
7.2.1Collusive agreements to fix the price of any apparatus or service
7.2.2Boycotting the supply of goods or services to competitors;
7.2.3Predatory pricing;
7.2.4Entering into exclusive arrangements which prevent competitors from having access to supplies;
7.2.5Agreements between Licensees to share the available market between them along geographic or customer lines;
7.2.6Agreements limiting production, markets, distribution of equipment or technical development to the prejudice of consumers;
7.2.7Applying dissimilar conditions to equivalent transactions with different parties, thereby placing one or some of the parties at a competitive disadvantage.
7.3In particular but without limiting the generality of the conduct referred to in Article 7.1, the Licensee shall not:
7.3.1 Enter into any agreement, arrangement, or understanding, whether legally enforceable or not, which has or is likely to have the effect of preventing or substantially lessening competition in any market for the provision or acquisition of any telecommunication installations, services or apparatus;
7.3.2 Give an undue preference to, or receive an unfair advantage from a business carried on by it or by an associated or affiliated company, service or person, if in the opinion of The Authority, competitors would be placed at a significant competitive disadvantage or competition would be prevented or substantially lessened within the meaning of Article 7.1.