July
1999
Morocco
Master Report
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Morocco Master Report |
1. Introduction
The principle outcome of the liberalization of the telecommunications sector, as initiated by the law 24.96 pertaining to the post and telecommunications, has been the opening of the Moroccan market to foreign operators. The arrival of other operators has created an undeniable problem concerning the need for alternative infrastructures. In effect, the opening of the telecommunications market must be accompanied by the liberalization of alternative infrastructures.
Taking into account the successful results in foreign countries following the adoption of a new developmental strategy for the information society, the liberalization of alternative infrastructures has become necessary in developing countries and most notably Morocco. This liberalization is an unavoidable step in order to stimulate the development of their telecommunication sectors.
2. Restricted alternative infrastructures
In Morocco, several legal entities of public or private nature dispose of alternative infrastructures. These entities can be classified as being both national and local. The national players are primarily the National Office of Electricity (ONE), the National Office of Railways (ONCF) and the National Society of Moroccan Highways (ADM). In possession of the long distance infrastructures, these entities should play an important role in the alternative infrastructure market.
The local players are not as numerous. They are primarily METRAGAZ, a company running the Gazoduc in the northern part of the country, and the companies LYDEC and REDAL that are in charge of water distribution and electricity in Casablanca and Rabat. At present these local players do not dispose of any telecommunication infrastructures. Of those involved on either a national or local level, none currently dispose of adequately developed infrastructures, but all are planning for a future development of their networks, most notably in fiber optics.
2.1 Inadequacy of the infrastructures of the different players.
The inadequacy of alternative infrastructures in Morocco is as visible on the national level as it is on the local level.
Let the point be made now that the national players dispose of a relatively weak telecommunications infrastructure. However, their "physical" infrastructures are interesting in the sense that they connect the larger cities such as: Rabat, Casablanca, Oujda, Marrakech, Tanger, Agadir... These physical infrastructures are being called upon to greatly facilitate the spreading of a telecommunication network in their proximity.
The case of the National Office of Electricity :
L'ONE uses 14706 Km of electrical lines. Only lines that are 400 KV and 225KV can be used to furnish alternative infrastructures. L'ONE is also planning to set up a 1000 Km fiber optic network.
On the other hand, the fiber optic network, which could be traced onto the electric network, will most often stop in proximity to the cities. Additional cables will have to be drawn toward the centers of the cities.
It must be noted that the network that the ONE is planning to establish will only serve the big cities. What is to be done for smaller cities and rural areas?
The case of the National Office of Railways:
The ONCF possesses a fairly developed network of railways (over 2000 Km of lines). In addition, the ONCF uses a ground radio network over 947 Km of lines and other wire networks used for signal systems and for data transmission over a 956 Km distance. This Office is also planning to establish a fiber optic network, but only for its own needs.
The railway network of the ONCF would then constitute an alternative infrastructure in the sense that fiber optic cables could be airlifted onto the pylons supporting the catenaries.
The case of the National Society of Moroccan Highways:
The Moroccan highway network is currently very precarious as only 286 Km of highway are in use. However, by the year 2010, the ADM plans to put a 1500 Km highway system into place that will give access to all of the country.
It must be noted that the ADM has neither a fiber optic network nor any conduits along the roads, including those now being constructed. However, considering the trunk roads chosen for construction, we think that the ADM could play an important role as an alternative infrastructure supplier.
Prospective visions of the different players.
Taking into account the revenues that could be earned by the above- mentioned players from using their alternative infrastructures, they are all very interested in any alternative which might allow them to actualize their infrastructures. Moreover, some of them have begun considering possible investments.
- The vision of ONE: As we have just seen, ONE is planning to invest in fiber optic cables. Although this Office does not wish to become a telecommunications operator, it does not exclude the possibility of contracting with operators who are interested in the available capacity of the fibers. In addition to this offer, ONE can propose any interested operator the use of its pylons, roofs, terraces and sites..
- The vision of the ONCF: The ONCF has not always done serious studies concerning the use of its network. We saw above that this network was specially conceived for railway use. However, the Office is conscious of the fact that it can play an interesting role within the framework of a negotiation concerning access rights. In effect, the Office does not exclude the possibility of investing in telecommunications by concluding an agreement with a telecommunications operator who in exchange for access, would furnish the Office with a space on its network for its own needs. Like the ONE, the ONCF could also offer sites close to its train stations.
- The vision of the ADM: The ADM is also interested in using its infrastructure, especially now that it is planning to establish a telecommunications network for its own needs, e.g., communication with the toll centers, a network of emergency call boxes…The ADM could, for example, form a partnership with a telecommunications operator and in exchange for facilitating the installation of carrier cables for the operator, have its own telecommunication traffic put through. Although the vision of the ADM is still very limited concerning this question, we believe that it constitutes an important player in terms of alternative infrastructures.
The local players are not as interested in this kind of investment as are the national players. In effect, they possess neither fiber optic networks nor any major "conduits" that they could lease to operators.
It would thus appear that the Moroccan market for alternative infrastructures is still in an embryonic state and that numerous efforts need to be made in order to develop this market.All of this risks slowing down the liberalization of the alternative infrastructures, especially given the fact that legal, economical and political obstacles are also hindering this liberalization.
2.2 A poorly adapted legal framework
The existence of alternative infrastructures on the market is not enough to bring about their liberalization. An adequate legal framework is also necessary.In the case that concerns us, the first priority is to see if those in possession of alternative infrastructures are authorized to use their networks for purposes other than those they were originally created for. The next step would be to find the adequate legal system to facilitate this liberalization. The study of related statutes, schedule books and concession conventions will allow us to find any potential obstacles that might hamper the liberalization of the alternative infrastructures. It is the analysis of these obstacles that will be the subject of this second part. If the case arises, certain propositions will be formulated with the intention of finding solutions for surmounting the obstacles and as a result, facilitating the liberalization.
3. The legal framework of the liberalization of alternative infrastructures.
Supply or use of the alternative infrastructures can take several forms:
We know that all the possessors of alternative infrastructures are either public establishments or concessionaire companies. They are public service organizations and were created for a specific purpose. In addition, they are only temporary users of the State’s public domain.
As a result, the statutes of these entities must be consulted in order to see if they are authorized to do one of the following:
The schedule books of these organizations must also be consulted in order to determine their rights and obligations concerning use of the public domain in case of negotiation about a right to access.
Concerning the above-mentioned operations, we have surmised in general that the public establishments have a defined purpose that is very limited and does not allow them to exercise any of the above activities. However, the concessionaire companies have a broader purpose and can thus exercise activities outside of their principle operations.
For example, article 2 of the Dahir n°1-63-225 of 5 august 1963, providing for the creation of the ONCF, limits the purpose of this office to activities related to the railway.
Article 2 of the dahir n°1-63-226 of 5 august 1963, providing for the creation of the ONE, only authorizes this office to exercise activities related to electrical energy.
However, the statutes of the concessionaire companies are more flexible in the definition of their purpose.
For example, the company METRAGAZ can, within the framework of its own activity, carry out any commercial, industrial, financial, real estate or property operation that might be favorable to its growth and development.
The ADM also has a statute allowing it to carry out any operation related to the following:
Hence, whether it be to lease unused fibers or specialized liaisons, or to provide telecommunication services, the concessionaire companies are theoretically free to act. However, neither the ONCF nor the ONE can exercise these kinds of activities. Their stated purposes must be modified.
Concerning the negotiation of a right to access in the public domain of the State that has been made available to the public establishment or the concessionaire company, a distinction needs to be made between the public establishments and the private companies.
4. Obstacles to liberalization and foreseeable solutions.
The supply of alternative infrastructures can come up against several obstacles.
The first obstacle we mentioned above is legal and consists of the fact that the defined purpose of the possessors of alternative infrastructures does not allow them to exercise other activities than those they were created for.
There are also considerable economical obstacles, such as the sizeable investments that must be made (for the installation of fiber optics, the construction of networks…). The cost of these investments is a determining factor in the choice and decision of the infrastructure possessor, especially considering that the possessor does not have a clear picture of what kind of investment might have to be made and of what the benefits could be.
In effect, the players we have seen are not knowledgeable about these kinds of projects and they do not have a prospective vision of the potential profitability of supplying their infrastructures. Market studies are thus necessary.
There is also a potential problem concerning the probable reticence of the supervising authorities. They may find it difficult to accept that their establishments exercise new activities, especially considering that these new activities could prove to be very profitable and might cause the establishments to lose interest in the activities they were created for. Therefore, it is important not to lose sight of the fact that these organizations have a public service mission and this is their reason for existence.
But these obstacles are not insurmountable and several solutions are possible. We must proceed by rewriting the texts, notably the statutes of certain establishments in order to give them more flexibility. It would be very beneficial, in fact, that the texts which govern these organizations give them the power to exercise a commercial activity without neglecting their principle purposes. In this case, the best choice for the possessors of alternative infrastructures is to acquire interest in telecommunication companies by contributing their infrastructures to these companies.
Above all, the possessors of alternative infrastructures and their supervising authorities must be made aware of the impacts of supplying these infrastructures and of all the advantages that we have begun to see here. At this level, the ANRT could play the role of mediator between the telecommunications operators on the one side and the possessors of alternative infrastructures and the supervising authorities on the other.
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