|
Press
Release
Kwaku Kwarteng (MP) (Deputy Ranking, Communications Select
Committee of Parliament)
April 05, 2016
THE
INTERCONNECT CLEARING HOUSE (ICH)
… according to
the new law
1. Section
20 of the Electronic Communications Act 2008, (Act 775) required
all mobile network operators (MNOs) to make arrangement for
interconnection with each and every other operator so that
subscribers of any network can communicate with those of any
other network. The law called it peer-to-peer interconnection.
The MNOs invested in interconnection infrastructure and were
interconnecting for themselves (peer-to-peer).
2. In
November 2014, the Ministry of Communications announced that it
was going to abolish the peer-to-peer interconnection
arrangements and appoint an Interconnect Clearing House (ICH) to
interconnect all communications for the MNOs. The ICH was also
to take over the revenue monitoring that the Ghana Revenue
Authority had contracted Subah Info Solutions to do.
3. In
January 2015, the National Communications Authority (NCA)
appointed Afriwave Telecoms Ltd to setup and operate the ICH as
a monopoly. All operators were instructed to mandatorily allow
their systems to connect with the ICH. In summary, Afriwave was
to setup and operate an ICH as a monopoly and also, to take over
revenue monitoring in the telecoms sector.
4. In March
2016, three applicants sued the NCA and Afriwave, challenging
the lawfulness and constitutionality of the ICH. This made it
impossible for the ICH to take off as planned.
5. In
January 2016, the Ministry of Communications therefore brought
the Electronic Communications (Amendment) Bill to Parliament to
replace the peer-to-peer interconnection arrangement with the
ICH. In the memorandum to the bill, it was stated that:
“The
proposed amendment in the Bill replaces the obligation of a
network operator to provide interconnection of its electronic
communications network with the network of another operator
under the peer-to-peer system in section 20 (1) of Act 775. A
network operator by virtue of the amendment is mandated to
provide interconnection of its electronic communication, service
or application through the interconnect Clearing House.”
6. On 17th
March 2016, Parliament made two significant and far-reaching
changes to the amendment before passing it into law. They were
as follows:
i. Parliament removed the monopoly and allowed
for multiple ICHs.
ii. No ICH was to be permitted to provide
revenue assurance or revenue monitoring services, since every
ICH was going to be a telecommunications service provider
expected to pay communication services tax to government.
7 So, there
is now a new law, Electronic Communications (Amendment) Act,
2016 (Act 910) supporting the setting up of ICHs, but the ICH
allowed by the new law is substantially different from the ICH
the Ministry of Communications wanted, and also, substantially
different from the ICH being challenged in court.
8. Indeed,
the question even arises whether all the things done in respect
of the monopolistic and revenue-monitoring ICH (that is, the
tender process to select the monopolistic ICH, the directives to
operators to work with that ICH, etc) before Act 910 came into
force were lawful at the time and are lawful now. But, that is a
discussion for another day.
9. The new
ICH regime is obviously an improved one. Beyond the transition
period, the network operators can connect to any ICH of their
choosing. Indeed, the law does not forbid the operators
themselves from coming together, forming an ICH and seeking
licence from the regulator.
10. It is
also worthy of note that the new law defines an ICH as follows:
A
centralised system to link public electronic communications
networks and services to allow the users of one public
electronic communications service to communicate with users of
another public electronic communications service.
Thus the law
has restricted the scope of what an ICH can do to just
interconnection and nothing else.
11. It would
therefore be fair on Afriwave that, given the reduced scope of
the ICH, the NCA refunds part of the GH¢4 million provisional
license fee Afriwave paid under the old monopolistic ICH regime;
that is, if Afriwave still intends to be licensed as an ICH
operator under the new regime.
12. Finally,
it is likely the Ghana Revenue Authority will continue with its
revenue monitoring contract with Subah Info Solutions. This is
because the GRA has on many occasions expressed satisfaction
with the performance of Subah in the contract. GRA had however
served notice earlier about its intention to terminate the
contract and pay compensation from the public purse to Subah in
order to pave way for the monopolistic and revenue-monitoring
ICH. But now, no ICH can monitor revenue because it would be
against the law.
13. In all this however, the question
remains whether our telecoms sector is better off or worse off
with an ICH regime. That is something we will know in due
course.
Sign
Kwaku Kwarteng (MP)
(Deputy Ranking,
Communications Select Committee of Parliament) |
