The Minister of Posts, Telecommunications and New Technologies of Information and Communication, « The Minister », has recently taken, not without reason, a Decree of major importance in a world where the quality of telecommunication services is required at any price. It is the Ministerial Decree of n° CAB/MIN/PTNTIC/TKKM/PKM/sap/022/012 of December 21, 2012 defining the terms and conditions to establish and operate fiber optic telecommunication networks in the Democratic Republic of the Congo1 , (« DRC ») referred as « the Ministerial Decree».
Optical fibers are recognized for their excellent qualities in transmitting data as in providing with an information rate significantly higher than coaxial cables. Furthermore, optical fibers support broadband networks through which television, telephone, and video-conference or computer data may pass while allowing long-distance communications at a rate which was previously impossible. They have been one of the key factors of the revolution in optical telecommunications. Fibers' properties are also used in the field of sensors (temperature, pressure, etc…), imaging and lighting.
Thus, their very recent launching in the DRC required a legal framework which would provide to telecommunication operators with the possibility to access to and to establish this network model whose operation has been proven in other countries.
In the DRC, the telecommunications are regulated by the Framework Lawn° 013/2002 of October 16, 2002 on Telecommunications, « Law on Telecommunications », which provides for three types of telecommunication networks: the reference or base network or Backbone Nationale (BBN), the concessionary network for public services and the independent network2 .
The first network is defined by the Law on Telecommunications as the set of telecommunication networks established or used by telecommunication public operator for public needs3 ;
Being in the public domain of the Congolese State, the reference network or Backbone National (BBN) includes transmission, collection and service network4 .
The second network is defined as a network open to the public, established on the basis of the concession contract between the State and the concessionary, private or public company or physical person, from which the State expects, in addition to license fees, periodic payments related to public interest obligations and other payable duties5 ;
The third network is described as telecommunication network for private internal use (when reserved for internal use by a person or an entity) or shared (when reserved for the use of several persons or entities established in one or many closed user groups for exchange of internal communications within the same group)6.
However, the Law on Telecommunications stipulates that the right to establish and operate telecommunication networks and services in the DRC is exercised in respect of operating systems that apply to other services and activities. The operating systems are the concessionary regime, the authorization regime, and the declaration regime7.
The right to establish and operate telecommunication services and activities is evidenced by an operating license issued by the Regulatory Authority8 in accordance with the Law on Telecommunications.
Concerning the fiber optic telecommunication network, paragraph 1 of article 4 of the Ministerial Decree states that «the establishment and operation of transmission, collection and service networks are subject to obtaining a license accompanied with specifications delivered by the Minister of PTNTIC after the opinion of the ARPTC. The issuance of the license is subject to the payment of the related taxes ».
This license evidences the right to establish and operate fiber optic telecommunication network in the DRC is granted for a 20-year period. Its cost depends on the specifications of each line9 .
Furthermore, the establishment and operation conditions of high rate networks shall be therefore specified in the project specification. For example, certain conditions are: standards and specifications of network equipment as well as facilities, infrastructures, network interconnection, use of public/private domains to install equipment, commercial operation conditions, tariff and invoicing rules, geographical coverage according to lines defined in the national general plan.
In addition, the Ministerial Decree defines interconnection and the pricing principles for high rate telecommunication services. The definition for wholesale and/or retail markets related to telecommunication network shall be specified by the Regulatory Authority in the form of directives10.
Although the reading of the article 10 of the Law on Telecommunications and article 2, paragraph a, of the Ministerial Decree sets forth that the reference or base network or Backbone Nationale (BBN) are established or used by telecommunication public operator only for public requirements, the Ministerial Decree provides for the possibility for the Minister to authorize, upon proposal of the Regulatory Authority, one or more operators other than the public operator to establish a part of the reference network in the framework of the BBN defined by the Minister and Public-private partnerships (PPP)11 .
To this end, the Regulatory Authority should therefore develop in consultation with the operators, a procedure for sharing site and infrastructure and promote the access to alternative infrastructures based on commercial negotiations in order to promote the development of competition12 .
Finally, the Ministerial Decree does not violate the applicable tax laws and regulations in the DRC because it does not take the liberty to introduce, to provide for and/or to determine fees, duties, taxes and royalties to be paid by operators willing to obtain the right to establish and operate high rate telecommunication networks and services on different transmission, collection and service networks.
In contrary, the Ministerial Decree subjects in its article 9 the establishment and operation of fiber optic telecommunication networks and services to the payments of fees, duties, taxes and royalties defined in legal instruments in force in the DRC13. This shows the willing to protect national and international investments by maintaining and keeping the pre-established legal system in the State.
This text of major importance which has been added to the legal framework on telecommunications in the DRC contributes to the modernization of the sector which is designed to attract investments from all around the world.