WEST AFRICA: REGIONAL BROADBAND MARKET DEVELOPMENT ASSESSMENT WEBINAR For the world Bank Group 9th December 2021 By Jones Day et Progressus corporation DISCLAIMER • This study was carried out by Jones Day and Progressus for the World Bank and is based on a compilation and review of documents, reports and data provided by the World Bank and our analysis of other public domain data (desk review). No contribution from any ECOWAS Member States was received • The purpose of this report is to: Identify main issues that limit the developments of the digital sector in West Africa Provide decision-markers with supporting materials to promote the growth of digital infrastructures / economies through adequate policies / reforms • This study was written for the sole use of the World Bank. It should be used for information purposes only and shall not be used for any other purpose. Jones Day and Progressus do not accept or assume any responsibility in respect of this study to anyone, including for the lack or incorrectness of data. Should anyone chooses to rely on the Study, then they do so at their own risk. • The findings, interpretations, and conclusions expressed in this work do not necessarily reflect the views of The World Bank, its Board of Executive Directors, or the governments they represent. The World Bank does not guarantee the accuracy of the data included in this work. The boundaries, colors, denominations, and other information shown on any map in this work do not imply any judgment on the part of The World Bank concerning the legal status of any territory or the endorsement or acceptance of such boundaries. Nothing herein shall constitute or be considered to be a limitation upon or waiver of the privileges and immunities of The World Bank, all of which are specifically reserved. Rémy Fekete David Guitton Olivier Jacquinot rfekete@jonesday.com dguitton@jonesday.com olivier.jacquinot@progressus-corp.com +33.1.56.59.39.39 +33.1.56.59.38.28 +32 2.478.01.07 2 CONTENT Introduction Issues in relation to Connectivity & Digital Infrastructures Exclusive Rights Authorization and Licensing Access and Interconnection Rights of Ways, Public Work Authorizations, Dig Once Policy and Promotion of Infrastructure Sharing Universal Service Taxes Lack of Implementation of Rights Granted by Regional text and Lack of Regional Coordination Spectrum Issues Data protection Digital activities Legislative approach 3 INTRODUCTION 4 AIM OF THE STUDY • Aim of the study: Identify key issues limiting the development of digital infrastructure / connectivity / digital activities Understand why such issues have not been resolved • 6 countries divided in 2 groups: Suggest critical policy reforms to move towards a Ivory Coast, Burkina Faso and single digital market Mali: several interconnections Guinea, Liberia and Sierra • 3 Levels: Leone: Level 1 – Connectivity and digital infrastructures Not (or only partially) interconnected with other Level 2 – Data protection countries Level 3 – Online regulation Only one submarine landing station each 5 BROADBAND DEVELOPMENT / PRICES AND MARKET OPENNESS • Level of openness of the market: measured by the Regulatory Watch Initiative (RWI) • Level of competition: measured by the HHI (Herfindahl-Hirschman Index) • Except for two countries, HHI is lower when the markets are more open (which means that the market is more competitive) • 2 specific situations: Mali (two active operators and country is landlocked) and Liberia (limited competition and a low broadband teledensity) **: ITU database completed by Progressus Corporation ‘s research, 2016 ***: https://www.internetworldstats.com/stats.htm ****: Operators’ web sites and Progressus Corporation ‘s research, April 2020 *****: https://isp.today/ 6 MAIN CONSEQUENCES OF THE ISSUES IDENTIFIED Investors Expected outcome Issues Impact consideration when issues resolved Legal regimes Exclusive rights Prohibit players from entering digital markets Legal regimes Authorization and licensing Restrict entrance of new players on digital markets Operation of the digital Lack of access / high cost to access to existing More players / more SMP / competition law infrastructures digital infrastructures competition More investments / more Rights of ways, public work Construction of digital Duplication / high cost of public works / digital digital infrastructures authorizations, infrastructure infrastructures infrastructures Lower cost to access to sharing existing digital Construction of digital infrastructures Universal services Lack of / limited financing of digital infrastructures infrastructures Less duplication of infrastructures Operation of the digital Less cost to carry out Taxes High cost of carrying out digital activities infrastructures digital activities No access / high cost to access to existing digital Better quality of service Construction of digital Regional coordination / Price reduction infrastructures / duplication of existing digital infrastructures cross-border rules infrastructures Access to necessary High cost of accessing to spectrum (including in rural Spectrum resources areas / for innovative services) 7 PROPOSED RECOMMENDATIONS • Recommendations in relation to • The recommendations concern all of the identified connectivity and digital infrastructures domains and their effect has been measured in (level 1): terms of economic welfare is the sum of producers and consumers surplus Consist of specific actions that are clear and concrete (no general / • The gain in economic welfare has been wishful thinking recommendations) estimated at a total of more 2 billion dollars in the mid term for the 6 selected countries, Are relevant and effective to representing a gain in GDP of 1% to 9% contribute to address the issues depending on the situation of each country identified Are realistic (for short term recommendations) • The Proposed Reforms concern all Countries (Burkina Faso, Guinea, Ivory Coast, Liberia, Mali and Sierra Leone) and the ECOWAS Commission 8 ISSUES IN RELATION TO CONNECTIVITY & DIGITAL INFRASTRUCTURES 9 1. EXCLUSIVE RIGHTS 10 EXCLUSIVE RIGHTS ARE STILL IN PLACE • Remaining exclusive rights: Legal grounds (even in non public documents such as license and technical specifications) Political decisions (e.g. refusal to grant license / authorize roll-out of digital infrastructures) De facto identification (only one operator on a market – unless economic reason justify such limited competition) • Activities affected: International infrastructures / capacities: right to (i) to establish / operate international gateways (e.g. submarine cable landing stations) and related backhaul and (ii) provide international capacities National infrastructures / capacities: right to (i) roll-out and operate backbones and (ii) provide national capacities • States-owned operators: more likely to benefit from exclusive rights Existing regional provisions: article 9.1 of the ECOWAS Supplementary Act A/SA. 3/01/07 on the Legal Regime Applicable to Network Operators and Service Providers 11 RECOMMENDATIONS • #1: When legislation does not formally prohibit exclusive rights, such strict prohibition should be specified • #2: For broadband infrastructures: • Existing de facto exclusive rights (i.e. refusal to grant licenses / authorizations) should be ended through the adoption of a clear political stance on the grant of new licenses / authorizations and conditions to obtain them (objective, transparent and non- discriminatory) • Active efforts should be undertaken to introduce competition on broadband markets 12 2. AUTHORIZATION AND LICENSING 13 LEGAL REGIMES ARE NOT ADAPTED • Licensing requirements not adapted: • Political oversight enable Many activities that could be subject to an authorities to maintain / enforce authorization / declaration are subject to a exclusive rights license • Owners / managers of alternative Bidding procedures are (sometimes) imposed (even when no scarce resources are at stake) infrastructures are unable to contribute to the roll-out of digital • Applicable procedures lack of objectivity / infrastructures non-discrimination: No clear and objective requirements to Existing regional provisions: Articles 8.1 of the ECOWAS obtain licenses / authorizations Supplementary Act A/SA. 3/01/07 on the Legal Regime Applicable to Network Operators and Service Providers No guarantee to obtain license or (Member States are expected to ensure “that service based authorization (when requirements are met) / competition does not dissuade new entrants from deploying their own infrastructure�). Article 30 sets out provisions for no timeframe facilitating the establishment of regional networks by ensuring No justification for refusal (which are NRAs co-ordinate their procedures so that one service request can be submitted to multiple Member States presumed) / no recourse in case of refusal Approval needed for declaration 14 GUIDELINES FOR ADJUSTING LEGAL FRAMEWORKS 15 RECOMMENDATIONS • #3: Legal frameworks should be revised to provide for authorization / declaration for activities in relation to broadband infrastructures (when no scarce resources are involved) • #4: Adjust legal framework to create a specific legal regime and procedure (e.g. authorization / declaration at the regional level) for: • National operators for activities in relation to broadband infrastructures when no scarce resources are involved (e.g. provision of IRU, dark fiber or national or international capacities) • Foreign operators of regional broadband infrastructures 16 3. ACCESS AND INTERCONNECTION 17 NECESSITY FOR STRONG SMP REGULATION The ultimate objective of SMP regulation is downward pressure on the retail prices of fixed or mobile data, and improved service quality / coverage • All Countries (except Sierra Leone) have put in place the legal and regulatory instruments for the market analysis (relevant market / SMP / remedies) but only Ivory Coast has effectively implemented the SMP regulation in an effective way • Main national issues Absence of relevant market analysis and regulated wholesale offers for international capacities in Burkina Faso Absence of publicly available Reference Access offers in Guinea (for both SOGEB, which operates the national backbone, and GUILAB, which operates the only international access via ACE) Lack of SMP legislation in Sierra Leone / published SMP decisions and Reference Access offers in Liberia Absence of published Reference Access offers in Mali since 2010 Monthly Price per Mbps for a STM1 (euros) Large variation of capacity prices / scope of services and range of capacity 200 offers limited 180 160 140 • Only Burkina Faso has published prices for capacities larger than STM1 (STM1 is only 120 155Mbps, which is relevant for voice circuits but very small for today’s broadband needs) 100 80 • In Ivory Coast, only prices for STM1 are publicly available , and they are far above prices in 60 40 other countries in the region 20 0 18 1 20 39 58 77 96 115 134 153 172 191 210 229 248 267 286 305 324 343 362 381 400 419 438 457 476 495 514 533 552 571 590 609 628 647 Source: operators’ website, Progressus Corporation’s research (2020) Sénégal Burkina Faso Côte d'Ivoire Bénin NEED FOR EFFECTIVE COMPETITION LAW • Competition is relevant: sanction in case of refusal to grant access to infrastructures, provision of access / services under overpriced and non-acceptable commercial terms, retention of information, delays in granting access / providing services, etc. • Competition law may be more effective (ex post): More investigation powers (including raids and seizures) More dissuasive sanctioning powers (i.e. a percentage of the worldwide turnover of the group of companies to which belong the infringing company) • Situation at the regional level: WAEMU: the WAEMU Commission has started exercising its powers (but not in the electronic communications sector) ECOWAS: the ECOWAS Regional Competition Authority has been established (but is only starting its activities – its operationalization is underway) 19 RECOMMENDATIONS • #5: SMP regulation should be fully enforced in all Countries, with the regular publication of decisions in relation to market analysis and to Reference Interconnect and Access offers for SMP operators. In particular, wholesale markets for national and international capacities will likely need to be analyzed and declared relevant where necessary, due to the persistent absence of competition and high prices in particular for national capacities An annual review of dominant operators in each relevant market. This should also include state-owned entities (such as GUILAB, SOGEB, SALCAB and others) that operate critical national resources such as domestic backbones or landing stations A set of proportionate remedies for operators declared dominant, including the effective publication of a reference offer for domestic and international capacities (up at least to 10 Gbps) detailing the technical and financial conditions for accessing these capacities, and imposing cost oriented prices • #6: (i) adopt recommendations on relevant markets for the electronic communications sector and (ii) improve regional SMP regulation with: An identification of a minimal set of relevant markets (including national and international capacities) The exclusion of retail markets from relevant markets (unless the NRA proves that there are urgent and conservatory remedies necessary to such retail markets) The imposition of price-caps for national and international capacities (or at least simple and predetermined methodologies to calculate price-caps) • #7: Ensure that competition authorities / NRA’s are duly established and have effective investigation and sanction powers regarding anti-competitive practices • #8: Adoption of guidelines on the application of regional competition law to the electronic communications sector (when there is a regional dimension) by ECOWAS Regional Competition Authority 20 4. RIGHTS OF WAYS, PUBLIC WORK AUTHORIZATIONS, DIG ONCE POLICY AND PROMOTION OF INFRASTRUCTURE SHARING 21 IMPLEMENTATION OF AN ONLINE ONE-STOP SHOP Issue: Online one-stop shop: • Administrative burden: • Opportunity: public authorities could collect relevant data and information on existing and planned infrastructures Rights of way / authorization from the owner of the lands and buildings • Expected outcome: public authorities could rely on such information to: Public works-related authorizations (numerous types of permits and authorizations to be Coordinate more efficiently the public works needed by obtained, including permits in relation to road all companies (i.e. effective implementation of “dig once works, building permits, environmental only� policy for the deployment of ducts) authorizations, etc.) Ensure that alternative infrastructures are prepared for • Securing such authorizations is difficult and costly: digital equipment (e.g. fiber optic cable, ducts, towers, etc.) Difficulty to identify (i) rightful owners of the lands / buildings and (ii) competent authorities Implement sharing of infrastructure by sharing information in relation to existing and future infrastructures Cumbersome rules and procedures for to be constructed (i.e. operators will be able to request obtaining access rights to lands / buildings and access to such infrastructures or the roll-out of fiber optic at public work authorizations the time the infrastructure is being constructed) Significant fees to be paid to obtain and maintain rights / authorizations 22 RECOMMENDATIONS • #9: Establish an on-line one-stop-shop for right of ways and other authorizations (e.g. public work authorizations, environmental approvals, road permits, etc.) in order to facilitate: • Investments in broadband infrastructures (through more transparent, easy and straightforward procedures for obtaining authorizations) • The sharing of infrastructures (between operators and in relation to alternative infrastructures) • The financing and construction of infrastructures by multiple cooperating parties (for instance, through co-investment / PPP) • #10: Systematize the roll-out of fiber optic cables as part of all future infrastructure developments and public works (“dig once policies�). • #11: Identify all broadband infrastructures in a database (with regular updates), grant access to this database to all ECOWAS electronic communications operators and provide for ex ante tariff regulation to access such infrastructures. 23 5. UNIVERSAL SERVICE 24 5 OF THE 6 COUNTRIES HAVE ESTABLISHED A LEVY FOR UNIVERSAL SERVICE, BUT ONLY IVORY COAST HAS FULLY IMPLEMENTED THE FUNDING OF PROJECTS Enforcement and funding Only Ivory Coast has fully implemented the use of funds from Universal Service fund, and has already financed large projects (National Backbone, e- government, access for citizens) According to the 2018 Web Foundation report, Ivory Coast had fully spent all USF funds by 2017, while in Burkina Faso, the fund amounted to US$78 million and had not been used yet, but we understand that there are ongoing efforts to finance projects in 2021 Source: Regulators’ websites, Progressus Corporation’s research For Sierra Leone there is a flat fee of US$ 160.000 Using these data, a theoretical estimation of the annual amount perceived by the fund has been made and leads to a total annual levy of US$62 million for four countries (Burkina Faso, Ivory Coast, Guinea and Mali). Assuming the same calculation would apply to Liberia and Sierra Leone, this would lead to a grand total of US$350 million for the six Countries on a 5-years period. Such an amount would allow for considerable investment in regional connectivity, among other projects, which would indeed be an opportunity for all these countries, though the primary use of Universal Service funds is to increase the coverage and usage of underserved areas 25 CURRENT SITUATION AND RECOMMENDATIONS • #12: Ensure effective use of universal service funds for broadband projects and prohibit use of funds for purposes outside the electronic communications sector • #13: Systematize the “play or pay� mechanism as a fall back measure in case the universal service funds are not used 26 6. TAXES 27 TAXATION PRESSURE IS HIGH IN THE TELECOM SECTOR COMPARED TO OTHER SECTORS The level of taxation of the operators significantly varies, from a minimum of 20% of the operator revenue in South Africa to 60% in Guinea (Source: GSMA) Sectoral taxes are subject to very frequent reforms. the : level of Examples Inverse correlation between taxation and the GSMA mobility index Liberia . (order of February 2021) Average Effective Tax Guinée (order of July 2021) Rate (AETR): summarizes the main taxes and fees paid by an operator over the length of a telecommunication license . The telecom sector faces a much higher level of taxation than the standard level of taxation (85% on average for Burkina Faso, Ivory Coast, Guinea, Mali and Sierra Leone for the telecom sector vs. 31% for the standard taxation rate in other sectors). 28 CURRENT SITUATION IN THE REGION AND THE COUNTRIES 29 RECOMMENDATIONS • #14: Eliminate all remaining taxes on international traffic in order to maintain the capacity of the operators to compete with OTTs • #15: Exclude money transfers from the scope of the taxes applicable to electronic communications 30 7. LACK OF ACCESS TO CROSS-BORDER INFRASTRUCTURES AND LACK OF REGIONAL COORDINATION 31 RIGHT TO ACCESS TO DIGITAL INFRASTRUCTURES IN NEIGHBORING COUNTRIES AND CROSS-BORDER DISPUTES • No right abroad: operators have no right to obtain access or • ECOWAS and WAEMU provisions on interconnection with digital infrastructures in neighboring countries cross-border disputes (see below): • Except provisions of regional texts: They have been transposed in Burkina Faso, Guinea, Ivory Coast and Mali Regulation C/REG. 19/12/16 (access terrestrial networks operated by SMP operators): requires determination of backbone operators as SMP We have not identified a single by NRAs (no application identified) cross-border dispute that was solved through such cross-border Regulation C/REG. 06/06/12 (access to submarine cables and landing dispute resolution mechanisms stations): no information received in relation to its effective implementation (no application identified) • Why: • Improvements: Limited number of Member States have implemented the regional provisions Obligation imposed on all operators (not only SMP operators) Perceived weakness of NRAs Extension of digital infrastructures to the border (to a reasonable extent) Lack of right to access digital Price for cross-border wholesale capacity determined at regional infrastructures in foreign countries level (at least for landlocked countries) Other existing regional provisions: (i) article 3 paragraph 1 of the ECOWAS Supplementary Act A/SA. 2/01/07 on Access and Interconnection in Respect of ICT Sector Networks and Services, (ii) article 16 of ECOWAS Supplementary Act A/SA. 1/01/07 on the harmonization of Policies and of the Regulatory Framework for ICT sector, (iii) article 28 of ECOWAS Supplementary Act A/SA. 2/01/07 on Access and Interconnection in Respect of ICT Sector Networks and Services and (iv) article 9.2 of WAEMU 32 Directive No. 01/2006/CM/UEMOA on the harmonization of control and regulatory policies for the telecommunications sector LACK OF COORDINATION IN RELATION TO THE ROLL-OUT OF CROSS- BORDER INFRASTRUCTURES Only dominant operators have succeeded to • Initiatives are at the national level: establish regional infrastructure Each State / operators roll-out their digital infrastructures based on their needs and Example of Orange’s Djoliba network potential use at a national level (apart some operators with regional footprints) Needs and existing infrastructures at regional level are not taken into account • No regional coordination is in place: No regional body is in charge of any rationalization / coordination WATRA has no legal power on such matter Existing regional provisions: (i) article 10.2 of the ECOWAS Supplementary Act A/SA. 1/01/07 on the harmonization of Policies and of the Regulatory Framework for ICT sector, (ii) article 3 of WAEMU Directive No. 01/2006/CM/UEMOA on the harmonization of control and regulatory policies for the telecommunications sector, (iii) article 3 of the WAEMU Directive No. 02/2006/CM/UEMOA on the harmonization of the regimes applicable to network operators and service providers and (iv) articles 1 and 5 of the WAEMU Directive No. 06/2006/CM/UEMOA organizing the overall framework for cooperation among national 33 telecommunications regulatory authorities RECOMMENDATIONS #16: Generalize cross-border interconnection and access rights between operators in different ECOWAS Member States even for non-SMP operators (e.g. adjust Regulation C/REG. 19/12/16) and implement this obligation in all electronic communications operators’ licenses and technical specifications. #17: Ensure that a regional body is in charge of gathering information on projects in relation to national and regional infrastructures (including alternative infrastructures) and disseminating them to key focal points (both public and private stakeholders) at the national level to ensure transparency and, more concretely, that: • Such projects are coordinated and consistent from a regional perspective • Fibre-optic is rolled-out on such infrastructures (including through the dissemination of information to all relevant public and private stakeholders) #18: Create specific committee in charge of: • Monitoring each country’s progress in the implementation and compliance of the regional legal and regulatory provisions by member States • Reporting publicly the outcome of such monitoring on a regular basis. Adjust legal framework (e.g. Regulation C/REG. 19/12/16) to generalize cross-border interconnection and access rights between operators in different ECOWAS Member States even for non-SMP operators 34 8. SPECTRUM ISSUES 35 SPECTRUM VALORISATION AND SPECTRUM SHARING ARE AMONG THE MOST IMPORTANT ISSUES IN SPECTRUM MANAGEMENT Main concerns Spectrum scarcity is not an issue. Except for Burkina Faso and Nigeria, less than 60% of the 2G/3G bands have been assigned, and except for Ivory Coast, the Digital Dividend has not been reassigned to telecoms The question of optimal spectrum valorization remains open: auctions have had a mixed success and prices of licenses have a very wide range License Exempt Spectrum should be developed. Several countries have regulatory restrictions on the use of Wi-Fi to create broadband Point to Point (PtP) or Multi Point (PtMP) links. Good practice should include reducing or removing registration and fee requirements for license exempt PtP and PtMP Shared access and local access licenses. In rural areas, IMT spectrum is significantly underutilized. Use it or share it policies can unlock access to spectrum in rural areas in order to enable operators with business models specifically aimed at rural service Source: Operators, Press, Progressus Corporation’s research 36 RECOMMENDATIONS Recommendations • #19: Increase the amount of spectrum assignment to broadband operators in particular for the DD1 / DD2 bands, with reasonable reserve pricing when auctions are used. • #20: Develop the usage of unlicensed spectrum through registration and fee waivers. • #21: Introduce dynamic spectrum management and spectrum sharing rules (use it or share-it) to promote investment in uncovered areas. 37 DATA PROTECTION 38 INCOMPLETENESS OF LEGAL AND REGULATORY FRAMEWORKS (OR IMPLEMENTATION THEREOF) • African Union Convention on Cyber Security and Personal Data Protection (27 June 2014) Not yet applicable since it needs to be ratified by at least 15 States (and has only been ratified by 9 countries as of 1 July 2021) It has not been signed by Burkina Faso, Ivory Coast, Liberia and Mali (and has been signed but not ratified by Sierra Leone). It has been ratified by Guinea (Burkina Faso is planning on signing / ratifying the convention) • ECOWAS Supplementary Act No. A/SA. 1/01/10 on Personal Data Protection (16 February 2010): not directly applicable in ECOWAS Member States • National level: 4 out of the 6 Countries have a legal framework (Burkina Faso, Guinea, Ivory Coast and Mali) Regulatory frameworks have not yet started to be adopted, regulatory authority are not in place or are not active 39 DATA PROTECTION : SITUATION IN THE REGION AND IN THE COUNTRIES 40 RECOMMENDATIONS • Need to bridge the gap (adopting and implementing legal and regulatory frameworks): International investors request legal certainty in relation to data protection Some national projects (e.g. e-identity, e-health, e-administration in general etc.) may only be implemented once there is a national legal and regulatory framework • Regional rules needed: Complexity of fragmented legal and regulatory frameworks at the national level Economies of scale may only by attained through regional projects Regional data protection authority could be contemplated • Rules should: efficiently protect citizens’ personal data and remain easy to understand, implement and comply with 41 DIGITAL ACTIVITIES 42 PRESENTATION OF THE LEGAL FRAMEWORKS APPLICABLE TO DIGITAL ACTIVITIES • Consumer protection: build users’ confidence in digital activities • Electronic transactions: provisions governing key digital tools / issues (cornerstone of all digital activities) • Electronic administration and public information: freedom of information, right to access public information, data and documents and relationship between citizens and the administration • Electronic identification: key issue to fully implement various types of e-administration projects (e.g. e-identity, e-health, etc.) • Digital financial services: enable consumers and companies to fully benefit from digital activities (used digital services in West Africa) • Cybercriminality and cybersecurity: key to maintain consumers trust in digital activities and enable States to sanction online infractions 43 CURRENT SITUATION IN THE REGION • Regional framework: See above for African Union Convention on Cyber Security and Personal Data ECOWAS Directive on Cybercrime (19 August 2011): only set objectives to be attained in the Countries (each Country may freely adopt national measures to transpose such Directive) • National frameworks: not adopted, not implemented, no relevant authority or authority not operational • Focus on digital financial services: Texts from the Central Bank of Africa are applicable in Burkina Faso, Ivory Coast and Mali (additional national texts are applicable in Burkina Faso) In Liberia and Guinea, national texts are applicable (none in Sierra Leone) 44 EXISTENCE OF STRATEGIES AND POLICIES IN 3 KEY TOPICS 45 CONSUMER PROTECTION 46 ELECTRONIC TRANSACTIONS 47 ELECTRONIC ADMINISTRATION 48 ELECTRONIC IDENTIFICATION RELATED FRAMEWORK 49 DIGITAL FINANCIAL SERVICES 50 CYBERSECURITY AND CYBERCRIMINALITY 51 RECOMMENDATIONS • Regional framework: for electronic transactions (see OHADA initiative), cybersecurity, some specific consumer protection rules and possibly a basic set of rules governing electronic identification • Regional authority (at least for electronic transactions): consistent with regional- dimension of the market for investors and the expertise needed • More specific measures (examples): E-commerce: improvement of issues in relation to postal addresses (e.g. national platforms of geolocalization or to provide localization) Digital services: (i) interoperability of all types of digital financial services nationally / regionally and (ii) ensuring that all public administrations accept digital payments (e.g. for taxes, fees, fines, etc.) Digitalizing administrative formalities (e.g. obtaining visas, passports, birth / death / wedding certificates, identity cards, criminal records, work and building permits, etc.) 52 LEGISLATIVE APPROACH 53 SOME RULES SHOULD BE ADOPTED AT THE REGIONAL LEVEL Market Regional level National level components Regional framework directly applicable and enforceable in all countries for core principles (e.g. prohibition of monopoly / exclusive rights, licensing National rules implementing Connectivity regimes, SMP regulation, infrastructure sharing, etc.) harmonized regional framework Regional framework harmonizing national rules for other matters Regional framework directly applicable and Ability for Member States to adopt Data enforceable in all countries national rules for some specific issues Possibly a single regional regulatory authority or to impose more stringent obligations Regional framework directly applicable and National rules implementing enforceable in all Member States for some matters harmonized regional framework / (consumer protection, electronic transactions, electronic adopting national rules when there is Online activities identification, digital financial services, cybersecurity, no regional harmonization (e.g. etc.) electronic administration and public Regional framework harmonizing national rules for information, cybercriminality) other matters 54 QUESTIONS? rfekete@jonesday.com dguitton@jonesday.com olivier.jacquinot@progressus-corp.com 55 BACK UP 56 REPRESENTATIVE COUNTRIES • Selection of West-African countries: A country with a more advanced digital infrastructure, relatively well connected by submarine fiber and national backbone (Ivory Coast) Landlocked countries facing the challenge of sparse low-income populations and long- distance to link with international fiber (Burkina Faso and Mali) Coastal countries with limited access to international submarine fiber and low development of national backbones (Guinea, Liberia and Sierra Leone) 57 ISSUES ARE FOUND AT THE REGIONAL AND NATIONAL LEVEL Regional level National level Transposition of Non-compliance Implementation of Issues Lack of / incomplete / Implementation of regional framework with regional / regional / national deficient provisions of the regional framework (lack of / incomplete / national provisions (lack regional legal framework (lack of) deficient) provisions of) Exclusive rights Authorization and licensing SMP / competition law (competition law) (competition law) Rights of ways, public work authorizations, infrastructure sharing Universal services Taxes Regional coordination / cross-border rules Spectrum 58 RELEVANT SOURCES OF FINANCING FOR THE CONSTRUCTION OF DIGITAL INFRASTRUCTURES 59 COMMERCIALIZATION OF FIBER OPTIC BY OWNERS / MANAGERS OF ALTERNATIVE INFRASTRUCTURES: LEGAL REGIMES • Current legal regimes: • Potential legal regimes: 60 CASE STUDY: INNOVATIVE TECHNOLOGIES New options for addressing regional connectivity in rural areas Low earth orbit (LEO) satellites are increasingly capable of providing much more affordable connectivity and interconnection services Yahsat and other High Throughput Satellite (HTS) operators are already providing coverage across the region However, not all of the Countries have permitted low cost satellite broadband services like Yahclick – only Ivory Coast TV White Space (TVWS) licensing frameworks, which are in the process of being adopted in Nigeria, and Ghana. The opening up of this spectrum will offer new opportunities to provide the long distance non-line-of-sight links that are often needed in remote and sparsely populated rural areas in developing countries Regional approach to the implementation of a geo-location database is a practical response given that other countries in the region will face the same challenge with geo-location databases as they implement TVWS regulation 61 IMPACT OF THE ISSUES IDENTIFIED ON THE MARKETS SUJETS OBSTACLES IMPACT Monopolies / exclusive rights Cumbersome procedures for obtaining licenses for certain activities Licensing regimes Foreign operators do not have a right to obtain a license for certain activities Regulation of SMP and Competition No (or limited) SMP regulation Law Lack of Competition Law for Access to Infrastructures Sharing of Telecommunications Obtaining rights to use public / private lands / buildings Infrastructures and Alternative No promotion / organization of sharing of infrastructures / access to alternative Infrastructures infrastructures Universal Service (unused funds) Taxes (impact on consumer cost and usage) Lack of Interconnection and Access Rights in Relation to Electronic Communications Infrastructures Located in Neighbouring Countries No regional coordination Lack of Use of Existing Cross-Border Dispute Resolution Mechanisms Lack of Coordination in Relation to the Roll-Out of Cross-Border Infrastructures Failure to Coordinate Projects Between Countries Spectrum High cost of spectrum, lack of availability of needed wavebands 62 To be translated SOURCE OF ISSUES DÉFICIENCE DU DIFFICULTÉS DE MISE EN DIFFICULTÉS SUJETS OBSTACLES CADRE JURIDIQUE ŒUVRE DU CADRE JURIDIQUE POLITIQUES Monopolies / exclusive rights Cumbersome procedures for obtaining licenses for certain activities Licensing regimes Foreign operators do not have a right to obtain a license for certain activities Regulation of SMP and No (or limited) SMP regulation Competition Law Lack of Competition Law for Access to Infrastructures Sharing of Obtaining rights to use public / private lands / buildings Telecommunications No promotion / organization of sharing of infrastructures / access to Infrastructures and alternative infrastructures Alternative Infrastructures Universal Service (unused finds) Taxes (impact on consumer cost and usage) Lack of Interconnection and Access Rights in Relation to Electronic Communications Infrastructures Located in Neighbouring Countries Lack of Use of Existing Cross-Border Dispute Resolution Mechanisms No regional coordination Lack of Coordination in Relation to the Roll-Out of Cross-Border Infrastructures Failure to Coordinate Projects Between Countries Spectrum High cost of spectrum, lack of availability of needed wavebands COMMERCIALIZATION OF FIBER OPTIC BY OWNERS / MANAGERS OF ALTERNATIVE INFRASTRUCTURES: POSSIBLE MODELS 64 PROPOSED REFORMS REFORM AGENDA 1. EXCLUSIVE RIGHTS AND AUTHORIZATIONS/LICENSING 65 PROPOSED REFORMS REFORM AGENDA 2. EX ANTE / EX POST REGULATION 66 PROPOSED REFORMS REFORM AGENDA 3. INFRASTRUCTURE SHARING AND RIGHT OF WAYS 67 PROPOSED REFORMS REFORM AGENDA 4. UNIVERSAL SERVICE 68 PROPOSED REFORMS REFORM AGENDA 5. REGIONAL COORDINATION 69