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Legislative Know-How: Open Access to the properties and buildings (right of way)
 

Article 11 of the Framework directive (2002/21/WE) obligates the EU Member States to ensure that the right of way is granted for the purposes of providing the telecommunication infrastructure without any delay and in non discriminatory and transparent procedures, by ensuring the fair competition and that the appealing proceedings will be conducted in front of independent entity.

As it was indicated in the OECD report, the impact of the right of way is influenced by: legal (who is entailed to resolve the dispute), administrative (procedures and deadlines to settle the matter), financial (compensations, charges, taxes and other costs) and regulatory issues. Polish law are analyzed according to these groups, circumstances and the facts established and proposed solutions are contained in this chapter, and partly in the third section (ie in the range of the regulatory framework).

The implementation of the article 11 in the Polish legal system is article 140 of the Telecommunication Act, in which in case denying access to the property referred to the art. 124 of the Real estate management act[1] – means the permissions granted by the Starost office[2]. Undoubtedly right of way is connected with the regulations included in the Civil Code about the easement of transfer and the regulations concerning the placement of the technical equipment on the road pass.

Above mentioned regulations needed further improvements because they practically do not exist, and in case of denying  concluding the agreement, the investors are withdrawing from investment process instead of exceptional grant of the authority to be able to place the telecommunication equipment (exceptions are rare and are connected with the access to the family units).

Long lasting court procedures of granting the right of way by easement of transfer require the final and legally valid court decision is in line with the obligations from art. 11 of the directive and their accessibility can be denied by the art.124 of the Real estate management act (ultima ratio). It is important to notice that the regulations partly included in the Telecommunication Act and partly in the  the Real estate management act raise the problem and confusions with the art. 11 of the directive. For example the permissions require a decision on the localization of the public investment or the local spatial plan ( the local self government is issuing the decision concerning the right of way and therefore this activity shall be separate- art. 11, 2 of the Framework directive). Furthermore, the regulation concerning the Real estate management act are preventing from issuing the permission for the State owned properties and preventing of performing with the permission in case of the Administrative Court order.

On the other hand the permission for placing the telecommunication infrastructure in the road line are granted according to the administrative approach of the road manager and only in exceptional circumstances. Meanwhile the State owned properties or the local self government properties shall be more easily accessible for the purposes of the telecommunication infrastructure in particular the broadband infrastructure which is the part of  public utility investment – the fact of the investment conducted by the private investors shall have no meaning. The example of the regulations in this matter can be found in the Austrian legal system which grants the right to the operators to place the telecommunication infrastructure on the state owned properties (like roads, sidewalks, square and the territory above those) without any additional fees or permissions from the local self governments or state governments. The right is granted by the regulatory authority and the local self governments can not oppose of issuing such a permission but are able to regulate the actual use of the property (time frame for the use of the property). Similar regulations are used in Germany- the operators can use the State owned properties (like roads, sidewalks, squares and the water roads) for the purposes of transferring the telecommunication lines without any additional fees and pursuant to the permission from the central authority and the local self governments may only regulate the technical parameters (like for example the depth of lay out).

In the last section, the right of way concerns the access to the building. In this matter it is necessary to impose the additional obligations for the owners and managers including housing cooperative and housing communities.

For the effective use of the right of way and for the development of the telecommunication infrastructure significant meaning have the costs of gaining the right of way and also the financial implications connected with the infrastructure and use of the property in this matter. As Austrian and Germany examples are showing, the use of the property for the purpose of the telecommunication infrastructure may be on the no charge basis. The important obstacle in the development of the telecommunication access is caused by the local self governments and the annual property tax of 2% from the estimated value of the telecommunication equipment and fiber optic cables and this is not dependent form the placement of the cables in the separate cable savage.

In the recent years it was more visible that the additional prohibitions and limitations were included in the local special plans which caused the rational planning and constructing of the networks on the bigger scale and destroying the right of way for the telecommunication infrastructure. As it was indicated in the OECD report, many countries are facing the same problems on the level of the local self governments and the investment growing beyond this level. The drafted new legislation shall ensure to the needs for the telecommunication investments on this areas where there are an visible disproportional and irrelevant limitations and prohibitions set up by the local special plans and also by setting up the rules for those plans to prevent from unnecessary interference in the telecommunication development. A good example can be found in the regulations existing in the USA were the federal act contains the resolution in which it was included that none of the local or state plans can prohibit from performing the telecommunication services.

At the same time it is necessary to assign the telecommunication investors with the right to dispute in front of the Administrative Court  the regulation included in the local plans in the scope in which they influence the telecommunication activities and construction on the telecommunication infrastructure.

Nevertheless, the regulatory authority specializing in the telecommunication issues and having the local branches shall have the additional competencies concerning the right of way ( in particular in the state owned properties) and to settle and mediate the disputes concerning the right of way (for example in Denmark, Austria, Canada and Portugal – the disputes are settle by the regulatory authority).

Guidelines laid down in the Priority I:

The act on supporting the development of the telecommunication access in the country and the amendments to the telecommunication act, act on public roads, act on the property management, act on planning and special development and act on taxes and local charges:

  1. Granting the right to the right of way operators in concerning to the public properties ( like squares, roads, sidewalks, bridges, water ways and the territories above them) without any additional charges and without any additional decisions from the entities in charge of those real estates. The permission will be granted or the regulatory authority or other public administration authority, but than regulatory authority will responsible for settlement of the disputes. The entities in which responsibilities of those properties remain, are still entailed to rights to regulate the technical requirements connected with the access to the property, (for example timetable and schedule of construction works), layout of the equipment ( the deep of the fiber optic cable layout) and the impact on the society ( pedestals traffic). The layout of the infrastructure shall be performed with the respect to the environment and the nature, as well as the space order with accordance to the rule to limit the obstacles in the use of the encumbered property.

  2. Simplification the procedures concerning the issuing of the permits by the road management – limitation the refuses of issuing the permit to several exceptions (for example security in the traffic system, technical problems, environmental issues) and the introduction of the legal sanctions for breaking those rules.

  3. Simplification in the procedure of issuing the permits to place the telecommunication infrastructure on the private property  (art. 140 T.A[1]. and art. 124 of the real estate management act) through simplification in the process of issuing the permits and also adjustments in the issuing of the permits to the regulations concerning the telecommunication infrastructure. If those responsibilities of the local governments remain, the right to act in the appealing proceedings shall be granted to the regulatory authority.

  4. Releasing of the operators from the fees regime for use of the public property and placement of the telecommunication infrastructure, in particular from the fees for the use of the traffic line . The permit will remain feeless for the period of 5-7 years from the time of constructing of the infrastructure which is closely connected to the time period necessary with the reimbursement of the capital expenditures. After above mentioned period, the fees will be collected but at the level not higher than during the use of the property for other purposes like (savage infrastructure, water system infrastructure). There will by equalize rules concerning the payments of the feeless for all operators, regardless form the investment time and with the 5-7 year rule  applying accordingly.

  5. Releasing of the operators from the property tax in the scope of the buildings and telecommunication infrastructure. The permit will remain feeless for the period of 5-7 years from constructing the infrastructure, which is closely connected to the time period necessary with the reimbursement of the capital expenditures.

  6. Opening for the investment purposes, the areas in which the not proportional and irrelevant  restrictions and prohibitions are set up in the local special plans and for the purpose of the telecommunication infrastructure development. Granting the right to the regulatory authority competences connected with the development of the local special plans.

  7. Granting the right to the telecommunication investors to appeal to the Administrative Court with regard to the local development plans in the areas concerning performance of the telecommunication activities.

The act on supporting the development of the telecommunication access in the country and the amendments to the act on ownership of the properties, act on housing cooperative and in the regulations concerning technical requirements for the buildings:

  1. In case the building is not provided with the fixed public telecommunication network compatible with broadband access to the Internet, every request coming from the telecommunication services provider concerning the request on installation on own cost basic  is immediately consider through the local authority. The resolution is undertake by the majority.

  2. The owner or the perpetual owner can not deny the access of the public property to the public fixed network of the high compatibility (including fiber optic) and the installation, maintenance and exchange of the parts on the costs of the telecommunication investor, landlord or others occupying the building in the good faith. The regulations concerning the owner or the perpetual owner shall be use accordingly to the other entities having the legal title to this property. In case the construction works are performed by telecommunication service provider using the public telecommunication networks, the work is performed on costs.

  3. In case of a request concerning the connection to the network from point 9 of this document, the owner or the perpetual owner of the property will be allowed to denied the access to connect the property to the public fixed network in case the property has already the access to the public telecommunication network which has the satisfying standard. In this case the requesting party can request to connect to the existing line.

  4. The refusal reason to connect to the public fixed telecommunication network is also considered a decision made by the owner immediately after the request from the landlord or landlords or other residents being in the good faith concerning the connection- in the 6 month from the date of the request  - property to the fixed public telecommunication network to ensure all citizens of the building with the appropriate quality of the services. In this case the contract between the owner and telecommunication investor is signed.

  5. The owner of the building can not refuse, unless special circumstances stipulated in the provisions, installation, exchange or maintenance and also access to the inside part of the network, outside antennas which receives the radio signal or the receiver antenna or broadcasting antenna for the purpose of telecommunication on the costs of resident or residents or other residents being in the good faith, without the difference if they are the legal or private entities. The owner may, remaining the 2 month notice, connect the individual receivers to the collective antenna and dismantle outside parts of the antenna previously placed by the resident or resident or other residents in the good faith. In this case the owner incurs the expenses connected to the installation and connection of the collective antenna and the costs of dismantle of the individual antennas. The purpose of this regulation is to ensure the residents with the right to install the individual antenna ( for the purpose of broadband access to the Internet) with respect for the rights of the building/ property owners (for example to eliminate to bigger amount of the individual antennas and providing the collective antennas).

  6. The rules applying for setting, using and maintenance of the telecommunication infrastructure ensure the connectivity of the property to the fived public telecommunication network in the family housing units or the service-family housing units are set-up in the agreement concerning the access to the telecommunication network between the telecommunication investor and owner or perpetual owner of the property. The template of the agreement and the main provisions will be provided by the minister responsible for the telecommunication issues in the regulation. The agreement may not depend on constructing or maintaining the telecommunication infrastructure necessary for connecting to the fixed public telecommunication network from fees for connecting and performed services or other performed services other than telecommunication services or tv /radio broadcasting services.

  7. The family units and the building having the usable premises must be equipt with fiber optic telecommunication cable for the purpose of ensuring that every family unit or the usable promises has the access. This obligation is mandatory in the buildings which the construction permit was issued after 1 of January 2010 and in case of the family units having more that 25 single units or premises having more than 25 usable premises after 1 of January 2011. The specific regulations are set up in the regulation.

  8. Provisions 9-14 shall apply to all family or usable units not dependently from the ownership status.

  9. From 1of December 2012 all of the TV receivers used for the purpose of receiving the Digital TV by the single users shall be equipped with the digital tuners for the purpose of HD TV.

  10. Starting from 1 of July 2009 all the digital tuners shall allow to watch are the free TV Channels in HD and SD.

  11. Producers and distributors of the electronic equipment of the common purpose are obliged to inform consumers in the clear and transparent way in particular at the retail place about the standards of the Digital TV compatible with the equipment at the retail places.


[1] T.A. Telecommunication Act

 


 

[1]Journal of Laws of 2009 No. 12379, item 1278

[2] Starost office is a unit supporting the county board, it should be noted that this is not the authority of the county.

 

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Updated : 2011-06-24