Rights of way for electronic communications: Are special regulations in place for: lift & shift and the allocations of the costs thereof, reinstatement, pre-instalment of empty ducts and hindering of other infrastructures?

10 October 2012

 Belgium 

If branches or roots reasonably hinder the construction, maintenance or exploitation of the cables, overhead lines or related equipment of the telecommunication network, the private land owner is required to shorten them at the request of the network operator.

 Finland

Besides supervising and regulating functioning of the networks, certain national authorities subscribed by law are entitled to access information necessary for the carrying out of their duties from any telecommunications operator, telecommunications contractor, or service provider or anyone acting on their behalf, concerning their activities.

Basically, telecommunication constructor has right to connect to a public communications network, but the constructor must obey regulations concerning technical and data protection requirements of networks when practising a livelihood constructs, installs or maintains an internal communications network in a property or building that is intended for connection to a public communications network. A telecommunications cable and related equipment, minor structures and poles may be installed in an area owned or controlled by another if agreement is reached on the installation. If no agreement is reached on the installation, the municipal building supervision authority may, by decision grant this right to the telecommunications operator by confirming the cable route plan.

 France 

Lift & shift and the allocations of the costs thereof: according to the precedent, the operators have to support the charges of lift & shit of their infrastructures in case of public works (done in the interest of public domain).

Reinstatement: The authorisation to install infrastructure over/under the public road domain is granted subject to the respect of public road local regulation (règlement de voirie). This regulation provides the obligation and conditions to bring back the pavement or road n its original state.

Pre-instalment of empty ducts: the above decree provides that the manager of the public domain may set a lower amount of fee for unoccupied ducts compared to that for the occupied one (see article R20-51 of the CPCE)

Hindering of other infrastructures: The authorisation to install infrastructure over/under the public road domain is granted subject to the destination of public roads, the integrity of pre-existing infrastructures and user safety(art. R 20 -46 CPCE

Regarding the use equivalent (by other telecommunication infrastructures) - When meeting the demand of an operator would preclude any further use of public domain by an other operator, the domain manager may make the granting of permission subject to carry out works for the subsequent sharing of facilities with other operators and make public the conditions of access to these facilities (art. R 20-48 CPCE).

 Germany

Lift & Shift: As regards the public right of way, the right of way holders face lift & shift obligations vis-à-vis the road administration as well as vis-à-vis certain public utility construction works. This is viewed as the price for the essentially free of charge public right of way. In exceptional cases, the right of way holder may receive cost reimbursement from public utilities where the telecommunications infrastructure was already in place, which lately is often subject to dispute. With respect to the private right of way, lift & shift obligations are typically to be observed where the telecommunications infrastructure prevents a changed use of the private land. On the other hand, and despite the statutory right under the private right of way, the lift & shift issue is normally regulated by contract between the right of way holder and the landowner.

Reinstatement: The right of way holders of both, public and private rights of way, have to reinstate all assets into their previous state at their own cost as part of the construction work. Where reinstatement is not fully possible, the right of way holders have to pay damages.

Pre-instalment of empty ducts: The German Telecommunications Act does not prohibit the pre-installation of empty ducts. It is, however, disputed in practice, whether the right of way allows having empty ducts permanently or whether the right of way confines the amount of empty ducts to a reasonable reserve. Due to obligations to share duct infrastructure (and corresponding shared usage rights), the issue is more relevant for the road administrations than for the right of way holders themselves.

Hindering of other infrastructures: On the one hand, there are shared usage rights for e.g. duct infrastructure in place between operators of public telecommunications networks but also vis-à-vis other infrastructure owners, in particular for the construction NGA networks. On the other hand, public utility infrastructures usually enjoy priority over telecommunications infrastructure, even when construction occurs while the telecommunications infrastructure is already in place.

 Italy 

According to the law, in case of shift of telecommunications infrastructures, the local body (Comune or Provincia) must pay the expenses for such shift. There are however provisions that appear to be slightly contradicting and that seem to suggest that the owner of land (upon which right of way have been granted) could demand shift of infrastructures without paying any indemnity.

 Netherlands 

Whenever a lift & shift is necessary for the construction of buildings / works by the land owner, the network owner is to lift and shift the cable on its own expenses, provided that the lift and shift is necessary for works or building constructions of the land owner or works on his behalf.
Reinstatement: upon completion of ground works the network owner is responsible for bringing back the pavement in its original states, unless the land owner has expressed to carry out reinstatement works. The network owner will bear the costs related thereto.

Pre-instalment of empty ducts is allowed under the Telecommunications Act. However, continued disuse of empty ducts may lead to taxes levied upon the telco(s) responsible, see above Other network owners may issue a request for duct sharing which may not be denied upon unreasonable grounds. The land owner may refer a network owner to other network owners for duct sharing if available.

Utility and telecommunications networks owners have concluded an agreement (Robli) to avoid unnecessary hindering of other infrastructures when carrying out ground works. The agreement contains special arrangements for the allocation of costs.

 Poland 

These issues are regulated in a couple legal acts, depending which infrastructure they consider.

 Spain 

CMT has imposed on Telefónica specific ex ante obligations regarding wholesale access/utilisation of the incumbent’s civil work-related infrastructure. These measures were adopted by the Spanish NRA in the context of the review of Market 4, in January 2009 (1). Telefónica’s reference offer was approved by CMT in November of the same year (2), certain changes having been introduced very recently (last July) (3).

Reference should also be made to the Regulation of March 2011 (4) on civil work-related infrastructure and equipment instalment inside buildings under condominium regime. This legal piece seeks to ensure the appropriate provision of electronic communication services by a variety of operators, as well as the deployment and shared utilisation of their respective networks.

All of the above is without prejudice to the specific rules that local governments may adopt within the scope of their powers.

 United Kingdom 

Usually, on private land these issues are dealt with on a case by case basis, in the contract between the operator and the landowner. On public land, local authorities have a duty to co-ordinate street works by undertakings, which includes encouraging joint working.

[1] Decision of January 22nd 2009 (ref. MTZ 2008/626).

[2] Decision of November 19th 2009 (ref. MTZ 2009/1223).

[3] Decision of July 5th 2012 (ref. MTZ 2011/1477).

[4] Regulation approved by Royal Decree 346/2011, of March 11th. It has been developed by Ministerial Instruction ITC/1644/2011, of June 10th.
 

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