Rights of way for electronic communications: What are the general rules for rights of way for electronic communications networks in your country? Which preconditions apply?

10 October 2012

 Belgium

In Belgium, operators of telecommunication networks are entitled to execute, at their own expense, all works connected to the establishment and maintenance of their network (e.g. cables and additional infrastructures) on or under the squares, roads, streets, paths, waterways and canals that are part of the public domain; on the condition that the operator respects the laws and decrees governing the public domain and the destination of the public domain.

It should be kept in mind that the federal government is competent for telecommunications, while the three communities (Flemish, French and German) are competent for broadcast communications (radio and television). Due to the convergence of these sectors, a cooperation of the different governmental levels is required. Hence rights of way are regulated in a similar way by the federal telecommunication legislation and the broadcast communication legislation on the level of the communities.

 Czech Republic

In the Czech Republic, the operators of electronic communications networks are generally entitled to carry out all measures necessary for proper connection and operation of their network. This includes quite generous right of way guaranteed by law provided that the network is placed on third party land. On the other hand, the law also protects land owners and requires that the operators are, in first place, obliged to enter into negotiation with the land owners and secure the leading and placement of the network via a lease or easement agreement with the effected land owner. If, however, the agreement is not reached, the expropriation authority is entitled to decide on the easement on behalf of the provider of electronic communications networks for a consideration corresponding to market standard conditions in the given area and time. Limitation of property rights of the private land owners may not be larger than necessary in respect of the operation of the public communications network.

 Finland

In Finland telecommunications and networks are regulated by the Finnish Communications Regulatory Authority (hereinafter “FICORA”).

The maintenance of communication networks belongs to the network operator. The FICORA supervise the functioning of the networks and rights of way. Accordingly the regulations imposed by FICORA network operators are obliged to monitor their networks and restore fault situations. The network operator is obliged to inform FICORA of all the significant fault situations.

Generally telecommunication network operators bear expenses of the building and maintenance of the networks. Since 2008, there has been a national project “Broadband 2005” which ensures fast fibre-optic or cable network connections to sparsely-populated areas of Finland. These particular projects are financed partly by public support.

 France

The general rule is that authorised undertakings operating a public communications network benefit from rights of way over (i) public road domains and (ii) other public domains. Moreover, they have some easements concerning private property.

The installation of infrastructure and equipment must be carried out in accordance with the environmental rules and the aesthetic quality of the site as well as under the least damaging conditions for private property and the public domain.

 Germany

In Germany, the Telecommunications Act of 2012 (Telekommunikationsgesetz in der Fassung 2012) foresees in its Sections 68 through 77e three types of rights of way: (i) so-called public right of way for public roads (incl. public places, bridges and waterways, but excluding railroads), (ii) so-called private right of way for private land and (iii) shared use of facilities that can host communications infrastructure (such as duct and cable).

Generally speaking, the public right of way is free of charge but subject to certain (low) administrative fees for obtaining a right of way permit and for construction permits relating to the individual installation of communications infrastructure.  The private right of way and the shared usage rights are subject to reasonable compensation to be paid to the affected owner.

The installation of infrastructure and equipment when enjoying the public right of way must be carried out in accordance with the applicable technical and environmental rules and, generally, all construction work with respect to any type of right of way must be done in such a way that is least damaging to the affected public or private property.

 Italy

According to the Legislative Decree 259/2003 wires and cables can be maintained above private or public land regardless of the consent of the owner. In case wires, cables or other infrastructure must be placed on or under the ground, rights of way can be imposed in case the owner does not consent to the placement. Preconditions: infrastructures must concern networks for public use or public utility.

 Netherlands

General rule: cables have to be allowed by the proprietor of the land, free of charge. The associated costs of cables which have to be moved or removed, because they obstruct works to be developed by the proprietor of the land, are the responsibility of the network owner (e.g. telecommunication operators). Exemption: private enclosed property. In these cases only local cables necessary for the connection to a household or company and inter-local cables have to be permitted by the proprietor to be laid in the ground without charge.

 Poland

In Poland there is a possibility to establish a utility servitude. This means that real property owned by a different person than the “entrepreneur” may be encumbered for the benefit of an entrepreneur who intends to erect installations (e.g. installations which serve to supply and channel liquids, steam, gas, electricity) or who owns such installations; with a right for an entrepreneur to be entitled to use the encumbered real property within a specified scope, in compliance with the purpose of these installations.

Generally such a servitude can be established by an agreement between the owner of the land and the entrepreneur. However, in case the owner refuses to enter into an agreement on establishment of utility servitude and the servitude is necessary for a proper use of the above mentioned installations, the entrepreneur may demand the servitude to be established for an adequate remuneration. In the last case the court on the motion of the entrepreneur will establish the servitude. It is worth emphasising that the utility servitude passes onto the party acquiring the enterprise or to a party acquiring the installations.

 Spain

The general rules governing rights of way for electronic communications networks in Spain are contained in the Spanish Telecommunications Act (1). This legislation establishes a distinction between access to public land and access to private property.

1.1. According to Article 26 of Law 32/2003, the occupation of public land is allowed to the extent that this occupation is necessary for the deployment of a public communications network. Thus two preconditions are to be met: necessity and the public nature of the electronic communications network.

Necessity means that other alternatives that are less burdensome for the purposes at stake do not exist. The competent bodies dealing, at regional/local level, with town planning shall request from the Central Administration (Ministry for Industry, Tourism and Trade) the pertinent report on the above-mentioned necessity. The specific regulations governing the requested occupation shall ensure the absence of discrimination among operators, as well as the maintenance of effective competition on the market.

The Spanish Supreme Court has recognised (2) the right of the Administration, as holder of the property of a public ground, to impose utilisation conditions which must be objective, non-discriminatory, transparent and proportional. This is to be done in the context of a weighting analysis based on public interest considerations. The concepts of necessity and public interest are also present in well-established precedents set out by the sector-specific Regulator, CMT.

Furthermore, the electronic communications network must be of a public nature, in the sense provided for by Annex II of Law 32/2003 (point 26) (3).

1.2. Article 27 of Law 32/2003 allows for the occupation of private property to the extent that this occupation is strictly necessary for the deployment of the network concerned, and provided that other alternatives which are feasible in economic terms do not exist - such as compulsory purchase orders or compulsory establishment of rights of way.

The granting of rights of way is subject to more demanding requirements when it comes to private land. First, because the standard of necessity is higher (“strictly” necessary). Secondly, because this standard must be based on a declaration of public benefit issued by the Central Administration. This declaration will follow a report produced by the competent regional authority dealing with town planning issues.

1.3. Article 28 and Article 29 of Law 32/2003 establishes a common regime for the occupation of public land and private property. Thus in addition to the rules set out by the Telecommunications Act, the legislator envisages the application to both scenarios of further regulations regarding the specific management of the property concerned, environment, public health, public security, national defence, town planning and tax. These additional rules shall in any case recognise the right to occupy public land or private property for the purposes of deploying a public electronic communications network, as set out by Law 32/2003.

Limitations on the rights of way at stake shall be subject to a wide number of general principles, i.e. proportionality, public interest, objective justification and motivation, transparency, non-discrimination, effective competition and functional separation (4). The administrative proceedings for the grating of occupation authorisations should be fast (no longer than six months), easy and efficient. The imposition of conditions preventing the occupation of public/private land shall be accompanied by appropriate alternative instruments, such as infrastructure sharing, in order to ensure the effective exercise of the rights of way on an equal footing.

1.4. According to Article 30 of the Telecommunications Act, the Ministry of Industry, Tourism and Trade will be able to impose sharing obligations regarding the utilisation of public/private land and/or infrastructures, upon operators entitled to exercise rights of way.

When the operators are prevented to separately exercise their rights of way due to reasons related to environment, public health, public security or town planning, the administration that is competent to deal with these matters shall impose the above-mentioned sharing obligations.

The shared utilisation of grounds or infrastructures will take place in the context of agreements entered into by the operators concerned. If no agreement is reached the relevant conditions shall be imposed by CMT, which will incorporate into its decision the report produced by the administration referred to in the precedent paragraph.

The imposition of sharing obligations must be subject to the principles of objectivity, transparency, non-discrimination and proportionality. These measures will be implemented in cooperation with the competent local authorities when necessary.

 Sweden

Right of way for areas within private or public land may be granted in accordance with the Right of Way Act (Sw: Ledningsrättslagen) (SFS 1973:1144) for cables and associated equipment being part of e.g. an electronic communications network. Electronic communications network may only be provided after notification to the national regulatory authorities (Sw: Post- och telestyrelsen). Therefore, only companies having permission to build and provide electronic communications networks are entitled to seek right of way for electronic communications networks. That could be telecommunication operators (telcos) or network sharing companies owned by the telcos.

 United Kingdom

The UK National Regulatory Authority, Ofcom, has the power to grant rights for operators to install and maintain communications apparatus in, over or under both private land and public land (i.e. streets). The rules are set out in the Electronic Communications Code (the Code), which is itself set out in Schedule 2 to the Telecommunications Act 1984, as amended by Schedule 3 to the Communications Act 2003.

The Code covers a wide range of communications apparatus, including apparatus designed or adapted for the sending or receiving of signals transmitted by an electronic communications network (ECN), together with any wire, cable, tube, pipe or similar thing that is designed or adapted for use in connection with the provision of an ECN or an electronic communications service, in addition to any conduit, structure, pole or other thing in, on, by or from which any electronic communications apparatus is or may be installed, supported, carried or suspended. A "structure" does not include a building.

Rights granted under the Code are wide ranging and cover not only the installation of the apparatus but also the retention of the apparatus on the land and the right of entry to inspect and maintain it.

In order to benefit from the Code, an operator must apply to Ofcom to have Code powers granted to it. Ofcom maintains a register of all operators to whom Code powers have been granted.

Operators with Code powers must also comply with the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 (SI 2003/2553) (the “Regulations”).

[1] Law 32/2003, of November 3rd.

[2] Judgement of May 3rd 2006 (RJ 2006, 2089).

[3] The Spanish legislator defines “public electronic communications network” as an electronic communications network is used wholly or mainly for the provision of publicly available electronic communications services and permits the conveyance of signals between network termination points.

[4] When the relevant public administration owns or controls (directly or indirectly) an operator that exploits a public electronic communications network or provides electronic communications services publicly available.
 

Other questions answered in the international communications bulletin for October 2012: