[afrinic-discuss] OPEN ACCESS SAT3

[Eric Osiakwan]

OPEN ACCESS SAT3

By Eric M.K Osiakwan

Visiting Fellow and Scholar

DV Program, Stanford University

http://blogs.law.harvard.edu/eric/



Since publishing the Open Access EASSy paper @ http:// 
blogs.law.harvard.edu/eric/ (you must read it to understand this  
paper), I have being challenged on the viability of Open Access to  
SAT3 and questioned on the need to institute the same standrards for  
both cables though we all know that SAT3 is already established and  
EASSy is yet to be. In this thesis I make an attempt at upholding the  
same Open Access structure and principles of EASSy to SAT3 – this is  
possible because both cables lie in the same realm but the context of  
their execusion are different. This is ONLY possible because of the  
window of opportunity presented by the end of exclusivity by the  
historic operators on SAT3 in April 2007 so I also suggest a process  
approach.


For the records, SAT3 was established with an exclusivity period to  
recoup investment by the historic operators and this is due in April  
2007 at which the SAT3 country governments can either entrench the  
exclusivity of the historic operators or consider other mechanisms  
such as what an proposing. SAT3 stands both as a pillar of hope and  
despair for the African continent; hope because it was the first  
cable and there is an opportunity for it to significantly change  
bandwidth prices based on it’s non-performance, despair because we  
may decide to keep things the way they are currently and continue  
with the incumbency and high bandwidth prices.



The reasons for the non-renewal of the exclusivity range from, the  
historic operators haven recouped their investment in the cable at  
high cost since the inception of the cable and yet made fiber  
bandwdith more expensive than satellite capacity. Secondly we know  
that the loan granted by the WorldBank to the historic operators for  
their contribution to the SAT3 cable was guaranteed by their  
respective governments hence the onus lies with the government after  
supporting the private interest of the historic operators to now  
consider the public interest of providing cheap and affordable  
bandwidth for socio-economic development.



If the SAT3 goverrnments and regulators collectively or individually  
decide to end the exclusivity in April 2007 then the question to me  
is, what steps should they take towards Open Accessing SAT3? I don’t  
hold monopoly on the steps and process because national and or  
regional relationships coupled with on the ground details must be  
taken into consideration but I would proceed to outline what I see as  
the larger framework of what is possible in terms of structure,  
principles and processes – same as for the EASSy cable. Hopefully  
other cables or subsequent ones would adopt or follow the same  
strucure, principles and process to have the desired impact.



For the records again, I applaud the work done by the Open Society  
Initiative for West Africa (OSIWA @ www.osiwa.org) and other  
institutions for not only holding two (2) workshops to discuss the  
SAT3 issues but bringing a community of engagement, culture of  
awareness of the issues at stake and channelling internal capacity  
within the various constituencies ie governments, regulators, private  
sector, educational institutions and Civil Society to understand  
whatever decisions they make regarding the cable. My effort in this  
paper is to compliment such efforts with an adoption that considers  
some elements and layout a general framework based on the several  
discussions and engagements.



Declaring SAT3 an “essential facility” would mean that it holds much  
in the public interest so must be treated with the public good as  
primary and other consideration as secondary. Private consideration  
would be first on the secondary ladder because that is important for  
the running of the public entity. Am not for once suggesting a move  
from an extreme private position to an extreme public consideration,  
but rather my suggestion is to use minimal public holding as a  
temporal measure to move from an exteme private interest to a balance  
between the private and public consideration. Open Access is about  
balance and consideration of the various interests.



The governments holding the essential facility in trust after  
declaring it so is only a temporary measure which must be seeded  
quickly to a multi-stakeholder institution which would work in the  
interest of the various constituency and ensure that there is a clear  
reflection of equity. Regulatory and public policy must recognise the  
establishment of the essenttial facility which in this case would be  
“infrastructure provider” – providing infrastructure for the other  
service providers wthin the value chain.



In some cases the regulatory and public policy environment must  
create the structural change from a vertical to a horizontal layering  
communication system and that enables the change process. Whatever  
the case may be, the first fundamental step is the re-alignment of  
the communication paradigm where there is a distinction between  
infrastructure and services.  This means a move from the vertical to  
the horizontal communication system. The essential facility in this  
case, the SAT3 country segment would constitute the infrastructure  
provider which DOES NOT provide services on the value chain. Ghana,  
Nigeria, South Africa and Senegal has hinted that they are going to  
adopt this approach post April 2007. In the case of Ghana, the  
government has also contracted the Chinese to finalise the nationwide  
fiber network which was owned by the Volta River Authority called  
Voltacom. Voltacom would be merged with the SAT3 country segment to  
form an “infrastructure provider” which would provider international  
and national bandwidth infrastructure.



Owership of the infrastructure provider is the next consideration,  
enjoining a multi-stakeholder ownership model ensures that there is  
balance of power, money and interest. It is in the interest of the  
government to ensure that this happens so that they are not labeled  
as “corrupting” the entity. The mechanism is for the government  
through an initial private and or public offering to invite the  
private sector, educational institutions, civil society, investors,  
PTTs and the consumer to own a part of this entity through a  
transparent and neutral process. Enlisting the infrastructure  
provider on the stock exchange would ensure that it is subject to the  
dictates of that environment ensuring access and commonality on  
ownership.



SAT3 at this point would have adhered to Open Access in terms of the  
structural change below;

Within the structural framework, the cable would have differentiated  
“Infrastructure” from “Services” where Infrastructure is seen more in  
the “Ownership” realm whiles Service is seen in “Access to capacity”.
The most distinguishing feature of the Open Access approach is that,  
ownership of the infrastructure DOES NOT GUARANTEE any access  
(discriminatory or not) to capacity on the value chain for the  
provision of service to the market. The respective country capacity  
would be on the money here.

A set of principles would hold for the ownership of the cable and  
those principles would be different from those for access to capacity.

Infrastructure ownership principles for the SAT3 cable would include;
The ownership of the cable must be in a public private partnership  
involving Government, PTTs, ISPs, Educational Institutions, Civil  
Society and Consumers.
A fair distribution of these constituencies from the member countries  
in an equal sub-regional distribution leading up to the Board of  
Directors of the enterprise in case a regional approach is adopted  
like EASSy.
The same set of rules must be established to identifying the various  
shareholders from the various countries in the different  
constituencies, again this applies to regional.
For the purposes of this exercise a Special Purpose Vehicle (SPV) or  
a legal entity with an African wide structure and majority Africa  
ownership should be considered
The essential facility must have a public interest combined with a  
private sector approach in it’s business model in order to ensure  
cheap and affordable bandwidth to the end-user.

Value Chain access to capacity for service delivery principles are;
The essential facility must sell capacity to all entities who meet  
the legal and regulatory requirements in each country directly and  
non-discriminatorily.
Service Providers shall be offered Transport Infrastructure Layer  
access to different capacities depending on their requirements.
End Users shall be free to choose any local Service Provider  
connected to the National and or Regional Network.
The essential facility shall not compete with Service Providers (its  
customers) by offering services at the Service Layers directly to End  
Users.
All countries must create a regulatory structure that recognizes the  
essential facility.
The essential facility shall be formed, owned and operated in such a  
way as to facilitate competition and to foster innovation at the  
Services Layer, and where practical and commercially viable at all  
levels, with a view to maximizing usage of the network and benefits  
to the End Users.

Once these are in place the market structure would align such that  
the infrastructure cost which is almost always duplicated several  
times by service providers is consolidated. That reduces the barrier  
to uptake on the service side and makes the service providers focus  
on services and competition in the market place for innovation and  
customer service delivery at cheaper or affordable cost. Ultimately  
the customer benefits and the uptake of ICTs as a sector and cross  
sectorial enabler would be enhanced.

This sets out the framework for Open Access as it relates to the SAT3  
cable but I must admit that this is not the ONLY approach in terms of  
process but structurally and principles wise, the above is not far  
from wrong. The devil as they say is always in the details, though.

NB: These principles and structure are drawn from the Open Access  
study conducted by Anders Comstedt, Eric Osiakwan and Russell  
Southwood for InfoDEV @ the WorldBank – http://www.infodev.org/en/ 
Project.80.html

Eric M.K Osiakwan
Executive Secretary
AfrISPA (www.afrispa.org)
Tel: + 233.21.258800
Fax: + 233.21.258811
Cell: + 233.244.386792
Handle: eosiakwan
Snail Mail: Pmb 208, Accra-North
Office: BusyInternet - 42 Ring Road Central, Accra-North
Blog: http://blogs.law.harvard.edu/eric/
Slang: "Tomorrow Now"




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