Before being entitled to exercise its right of way, the interested operator is required to submit a network plan and the details of the works for approval to the authority responsible for the corresponding public domain. This authority will take a decision within a timeframe of 2 to 3 months (depending on the competent authority). In absence of a decision within this period, silence of the authority must be interpreted as an implied consent. In the case of a persistent dispute, the competent Government will take a decision.
Generally, the rights of way are granted to telecommunication operators only. Under Czech law operators of electronic communications networks are entitled to operate above-ground and under-ground communications networks, antenna towers and other electrical connections on or in third party’s land provided that they have the respective permission to operate electronic communications networks and they meet the conditions laid down by the respective building authority in the building/construction permit.
Based on such right, the operators are also entitled, to the extent necessary for the operation of the communication networks and based on the prior notice to the owner of the land, to enter and drive in the third party’s land in order to repair or maintain the electronic equipment or to shorten branches or roots reasonably hindering the construction, maintenance or exploitation of the cables and other related equipment of the telecommunication network.
In Finland telecommunication network operators with significant market power have obligations concerning right to way. FICORA declares operator to be an operator with significant market power if it is seen in a particular market to exert economic influence that allows it to operate alone of with others independently of competitors, consumers or other users. Telecommunication operators with significant market power have obligations to enable access to their telecommunication networks and eliminate barriers to competition between service providers. Telecommunication networks must meet regulations and guidelines by FICORA.
Authorised undertakings operating a public communications network benefit from rights of way.
The public right of way is only available to operators and/or owners of public telecommunications networks, thus only with respect to infrastructure for which on operator of public telecommunications networks has submitted a respective notification to the German national regulatory authority (Bundesnetzagentur – BNetzA). Certain shared usage rights can also only be obtained in conjunction with the public right of way.
The private right of way is granted directly by statute and entitles all operators and/or owners of (public or non-public) telecommunications infrastructure to use the private land without requirement of any further act of government. However, with respect to the usage of private land or buildings to construct network access points for end customers, the private right of way is only granted with respect to next generation access (NGA) networks. Other access lines (i.e. copper) require private agreements between landowner and network operator or service provider.
In addition, operators of public telecommunications networks used for NGA enjoy certain shared usage rights with respect to public utility facilities such as water, sewage, electricity, gas and public transport infrastructure as well as public facilities held by the federal state such as e.g. ducts in federal roads, waterways and railroads.
It follows from the above that public utility operators also enjoy rights of way but on the basis of different legal regime. Furthermore, the administration in charge of public roads is obviously entitled to install telecommunications infrastructure in its roads.
Telecommunication operators that have been duly authorised to install networks.
Telecommunication operators have a right of way as described under question 1.
Generally the owners of the installations, but also other third parties acting in their name and for their benefit, e.g. constructors, repairmen etc.
The rules set out by Law 32/2003 regarding rights of way concern any entity qualifying as an electronic communications operator and thus meeting the requirements established in this respect by the Telecommunications Act (Article 6). This status would in principle be compatible with the presence in other economic sectors beyond the telecommunication industry.
The right of way is granted to a certain area within the land. It includes the right to build, use and maintain the cables and associated equipment and may be granted both for public and private land. As long as the telco uses the same area within such ground for which the right of way has been granted, the telco should not be prohibited to supplement a network site with extra antennas or cables. There is however still an obligation to obtain building permits in accordance with the rules set forth in such legislation. Placing extra equipment can be subject to a new building permit.
Right of way is valid indefinitely and can only be revoked by a new decision by the authorities, e.g. after major changes of the prerequisites. Within the right of way permit, the authorities decide the compensation to the land owner. Such compensation is in general very low and is a one-off payment covering the damages due to depreciation of the land resulting from the rights of way decision. It is not unusual that the yearly rental fee based on voluntary agreements between telcos and land owners supersedes the one-off for all time compensation due to right of way. Despite the telcos economic advantages by seeking right of way, it is rarely used mainly due to the telcos need of quick solutions and the importance of keeping a good relationship with land owners.
Section 106 of the Communications Act provides that Ofcom may grant Code powers both to ECN providers and to providers of conduit systems that may be used by ECN providers (e.g., gas or water providers).
Other questions answered in the international communications bulletin for October 2012: