Accessing Buildings to Install Telecommunications Facilities

Transcription

1 Australia s regulator for broadcasting, the internet, radiocommunications and telecommunications Accessing Buildings to Install Telecommunications Facilities

2 The Australian Communications and Media Authority (ACMA) is the national regulator of broadcasting, the internet, radiocommunications and telecommunications. ACMA supports and encourages innovation in the communications sector and promotes self-regulation, while safeguarding the interests of consumers and other users. Australians expect to have access to safe, reliable, high-speed communication services. For the quality of communications services to keep up with user expectations, the owners of telecommunications equipment need to ensure new services are rolled out where needed and existing infrastructure is regularly maintained. However, there are rules outlining how and when telecommunications carriers may access buildings and land to undertake this work. Carriers rolling out communications infrastructure often face challenges in accessing and installing telecommunications facilities in existing buildings, particularly multi-tenanted commercial buildings. Building owners also face challenges in responding to carriers requests to access buildings to install infrastructure. ACMA has developed this brochure to inform building owners, tenants and carriers about their rights and obligations under the Telecommunications Act 1997 in accessing buildings and land to install telecommunications facilities.

3 Why access is needed Telephone companies licensed as carriers by ACMA may seek access to buildings with multiple tenants for the following reasons: to provide telecommunications services, including broadband, to tenants to install radiocommunications facilities to serve customers outside the building to inspect the site to determine whether it is suitable for its purposes or to maintain a facility located in or on the building. As a result, the building owner and carrier or carriers need to work together to coordinate the installation of the necessary infrastructure. Legislation, codes and guidelines The Telecommunications Act provides the overarching legislative framework governing carriers and building owners rights and responsibilities when rolling out both cable and radiocommunications infrastructure in and on buildings. There are also associated legislative instruments including the Telecommunications (Low-impact Facilities) Determination 1997 and the Telecommunications Code of Practice This legislative framework is further complemented by an industry code and guideline prepared by Communications Alliance, which was formerly the Australian Communications Industry Forum (ACIF). The relevant code is known as industry code, ACIF C564:2004 Deployment of Mobile Phone Network Infrastructure and requires, among other things, that carriers adopt a precautionary approach in the planning, installation and operation of radiocommunications infrastructure and applies consultation requirements to the installation of these. Compliance with the industry code is enforceable by ACMA. Communications Alliance has also developed an industry guideline, ACIF G571:2002 Building Access Operations and Installation, which building owners and carriers can agree to use in conjunction with some of the statutory requirements set out in the Telecommunications Act. In addition, a best practice guide of relevance for industry members is the Digital Building Telecommunications Access Guideline, which has been published by the Australian Building Codes Board to assist in planning spaces for telecommunications services and making agreements for telecommunications access in multi-tenanted buildings. With the legislation, the ACIF code and guideline provide a comprehensive framework for the responsive and responsible rollout of telecommunications infrastructure. Planning permissions and exemptions For carriers seeking to install infrastructure, the general rule is that they need to obtain local government planning permission and comply with relevant state and territory planning laws. However, carriers may install a limited range of facilities without seeking planning approval. The most common of these are lowimpact facilities. LOW-IMPACT FACILITIES The Low-impact Facilities Determination lists types of lowimpact facilities, for example: small radiocommunications dishes and antennae underground cabling and cable pits in-building subscriber connection equipment and public payphones. The determination defines where these facilities can be installed, based on location and zoning considerations. For example, a facility that may be otherwise deemed low-impact in a rural or industrial zone may not be low-impact if it is installed in a residential area. Examples of designated low-impact facilities are set out in an ACMA fact sheet, Installation of telecommunications facilities a guide for local government. EXEMPTION FROM STATE AND TERRITORY PLANNING LAWS A carrier authorised under the Telecommunications Act to install a low-impact facility is immune from some state and territory laws, including planning and environmental laws. This immunity applies during the inspection of land, the installation of certain types of telecommunications facilities, including low-impact facilities, and the maintenance of facilities. However, while engaged in these activities, the carrier must comply with the requirements in the Telecommunications Act and the Telecommunications Code of Practice. The immunity only applies to carriers, not to carriage service or other service providers. For practical and commercial reasons, carriage service and other service providers may need to enter into agreements for building or land access. Carriers rights Under the Telecommunications Act, carriers have certain rights. RIGHT TO INSPECT LAND Carriers may enter onto and inspect land, and do anything on that land that is necessary or desirable to determine whether the land is suitable for their purposes. RIGHT TO INSTALL LOW-IMPACT FACILITIES Carriers have the right to install a low-impact facility. 4 5

4 RIGHT TO MAINTAIN TELECOMMUNICATIONS FACILITIES Carriers have the right to maintain a telecommunications facility and may do anything necessary to maintain a facility, including altering, removing or repairing it. Carriers responsibilities Carriers seeking to inspect land, install a low-impact facility or maintain a facility must comply with Schedule 3 to the Telecommunications Act and with the Telecommunications Code of Practice. Schedule 3 specifies carrier responsibilities, including requirements to: provide written notice to landowners and occupiers, before beginning the activity do as little damage as practicable and act according to good engineering practice take all reasonable steps to ensure the land is restored to a condition similar to its condition before the activity began take all reasonable steps to ensure that the activity interferes as little as practicable with the operations of a public utility and maintain records about the type and location of certain facilities. The Telecommunications Code of Practice imposes additional requirements on carriers, including requirements to: comply with any standard or code registered with ACMA ensure that the design, planning and installation of the facility follow best practice and comply with ACMA or industry codes or standards provide written notice to landowners and occupiers, specifying the purpose for which the carrier intends to engage in the activity and outlining the objection process, at least 10 business days before starting the activity (including installation) when installing a low-impact facility between 10:00 pm and 7:00 am, make no more noise than allowed under the relevant state or territory law applying to similar activities take all reasonable steps to make use of existing facilities for the activity and make reasonable efforts to cooperate with other carriers and public utilities undertaking similar activities on the same land to minimise inconvenience and damage. Objections by land owners or occupiers Where a carrier serves a notice under the Telecommunications Code of Practice to inspect land, install a low-impact facility or maintain a facility, an owner or occupier may object to the installation of a low-impact facility on their land only on the following grounds: the use of the land for the installation the location of a facility on the land the date the carrier proposes to start the installation, engage in it or stop it the likely effect of the installation on the land and the carrier s proposals to minimise detriment and inconvenience, and to do as little damage as practicable to the land. Strict timeframes apply to the objection process. An objection under the Telecommunications Code of Practice must be made in writing to the carrier at least five business days before the commencement date for the installation on the carrier s notice. When an objection is made, the carrier must: attempt to resolve objections from landowners and or occupiers and, where an objection cannot be resolved, refer the objection to the Telecommunications Industry Ombudsman (TIO) when requested to do so by the landowner or occupier make reasonable efforts to consult with an owner or occupier who makes a written objection (within five working days after receiving the objection) and to resolve it, and respond to the objector in writing. If the objection is not resolved, the objector can require the carrier to refer the matter to the TIO. Once a carrier has considered an objection and responded in writing, the objector has nine business days after they receive the response to request the carrier, in writing, to refer the objection to the TIO. The carrier must comply with such a request. The TIO may investigate the proposal and decide whether to issue a direction to the carrier about the installation. Where the TIO decides to issue a direction and that direction relates to the way in which the carrier should engage in land entry activity, the carrier must comply with that direction. The TIO can also investigate complaints that a carrier has failed to give the notice required by the Telecommunications Code of Practice or about the way the carrier has entered the land. In such cases, the complaint can be made directly to the TIO. Compensation An owner of a property, or a person with an interest in it, may be entitled to compensation for any financial loss or damage caused by a carrier entering and inspecting land, or installing or maintaining a low-impact facility. A claim for compensation is not a ground for objection under the Telecommunications Code of Practice. If the amount of compensation cannot be agreed 6 7

5 between the parties, a court may decide on what is a reasonable amount. Any party considering legal action should obtain their own independent legal advice. Installing in-building subscriber connection equipment As noted earlier, a carrier has rights under the Telecommunications Act to enter another person s property to inspect the property and install and maintain low-impact facilities, including in-building subscriber connection equipment. In-building subscriber connection equipment is generally unobtrusive infrastructure that includes facilities needed to connect customers within a building to an existing telecommunications network. For example, such a connection may be a line from the boundary of an existing network connected to a main distribution frame (MDF) and a second line connecting the subscriber to that MDF. Network boundaries are defined under section 22 of the Telecommunications Act. An in-building subscriber connection must be housed in an appropriate locality negotiated with the building owner, and be installed according to provisions under Chapter 4 of the Telecommunications Code of Practice. Consequently, carriers needing access to a building to connect a customer to their network must negotiate fairly the terms of that access with the building owner. Schedule 3 to the Telecommunications Act includes, if required, arrangements for compensation for activities carried out under Schedule 3. INDUSTRY GUIDELINE FOR IN-BUILDING SUBSCRIBER CONNECTIONS When installing in-building subscriber connection equipment, those involved may decide to follow the processes set out in the ACIF Building Access Operations and Installation Guideline in conjunction with the statutory requirements set out in the Telecommunications Act and the Telecommunications Code of Practice. The guideline is a voluntary arrangement and carriers can choose whether or not to follow it, and whether to follow it in whole or in part. Where a carrier chooses not to follow it, the carrier must still comply with the requirements of the Act and Code of Practice. In summary, the processes under the ACIF guideline are: Pre-installation Carrier notifies owner s representative of intent to inspect site for survey. Owner confirms contact details and waives notification rights within two business days. Carrier contacts owner s representative for simple inspection. Carrier meets owner s representative on site and inspection is held within two business days. Owner s representative supplies questionnaire, copies of drawings and site plan, and building rules (any rules and procedures applying to that particular building), highlighting any special building issues. Carrier prepares a site visit outcomes pack, including a completed questionnaire. Installation Carrier issues proposal to owner s representative (including site visit outcomes pack and completed questionnaire). Owner s representative accepts or rejects proposal within three but no more than five business days. If proposal is rejected, owner s representative supplies amendments and a further proposal is issued. Owner s representative must reply within two business days. If the proposal is accepted, installation may proceed. The carrier s representative provides two business days notification of intention to commence installation and supplies a program of works and access requirements to owner s representative. Owner s representative arranges security and building access. Consent is required to access areas other than those agreed to in the program of works. Carrier s telecommunication facilities must comply with ACMA s electromagnetic energy (EME) regulatory arrangements. Carriers should ensure all necessary permits and trade licences are in place. Carriers are required to comply with building occupational health and safety guidelines set out in the ACIF Building Access Operations and Installation Guideline. Post-installation Carrier is to ensure all required certifications are provided to the owner s representative within five business days of completion. Carrier completes clean up and reinstatement, tags the facility as its own and exits the site within 10 business days of completion. Maintenance Carrier s representative gives the owner s representative two business days notice of a scheduled maintenance activity on site except where: the carrier and owner have other arrangements or no notice is required when maintenance is needed without delay to maintain service or to protect the integrity of a telecommunications network or facility, people s health or safety, or that of the environment or property. 8 9

6 Other matters The Building Access Operations and Installation guideline also sets out practical activities aimed at improvements in circumstances where there are significant riser, equipment and related space/management constraints. Digital Building Telecommunications Access Guideline In 2006, the Australian Building Codes Board published the Digital Building Telecommunications Access Guidlines (Digital Building Guideline) as a best practice guide to help facilitate and manage arrangements for access to buildings when providing telecommunications services to tenants. The Digital Building Guideline aims to support more competitive broadband services and focuses on increasing awareness and education about carrier telecommunications infrastructure in CBD multi-tenant buildings. It includes guidelines to manage the various expectations and outcomes for tenants, building owners and managers and telecommunication carriers and services providers. There are guiding principles for building spaces and services and telecommunications access, along with suggestions for communication network architecture within buildings, and checklists. Where appropriate, the guide refers to standards applying to size and spacing of the communication network architecture. As discussed earlier, carriers and carriage service providers should negotiate fairly the terms of access with building owners or managers. The Digital Building Guideline provides a guide to the types of issues that could be addressed in any building access agreement and sets out some optional terms and conditions. None of those suggestions is mandatory, with the terms of any agreement ultimately for the parties to decide. The Digital Building Guideline can be purchased through the Australian Building Codes Board website, Installing mobile phone base stations Where a carrier seeks access to a building to install a mobile phone base station for public mobile telecommunications services, they need to comply with the ACIF Deployment of Mobile Phone Network Infrastructure Code. The code is registered under the Telecommunications Act and supplements the regulatory regimes provided by the Commonwealth, states and territories. The code provisions apply to carriers fixed radiocommunications infrastructure used to supply public mobile telecommunications services such that the base station is capable of inter-cell handover. Exempt radiocommunications infrastructure is listed in the code. The code requires carriers to apply a precautionary approach to the design, operation and selection of sites for proposed mobile phone base stations. There are many obligations on carriers in relation to their base stations, including: 10 designing and operating radiocommunications infrastructure to minimise EME exposure providing information to the public on request about EME for specific sites developing written procedures for site selection, including taking account of the reasonable service objectives of the carrier, the objective of avoiding community sensitive locations, the availability of land and public utilities providing information to local government authorities on network forward planning for the region if requested and turning off transmitters that are out of service. The code s consultation requirements do not apply to infrastructure that falls within state and territory planning laws and requires local development approval. In that case, it is expected that there will be public consultation through the development approval process. For carriers installing mobile phone base stations at new sites that do not require development approval, obligations may include: developing a plan for local community consultation, with timeframes and signage complying with the consultation plan identifying community-sensitive locations identifying relevant community stakeholders consulting with the owner, occupiers, immediate residential neighbours, interested and affected parties, occupiers of community-sensitive locations and relevant community stakeholders and providing the local government authority with a report about the responses from those notified, the results of any other consultation and the carrier s intended actions regarding the proposed work; with the report to be available to the public on request. Where a carrier intends to co-locate with an existing facility, they must also, as a minimum, publish a notice of the proposed work in a newspaper circulating in the area surrounding the location. The notice must include the location and details of the proposed work and invite submissions. The submission closing date must be at least 10 days after the date the notice is published. Before starting the work, the carrier must take account of any submissions received from the public and local government authority. Under the industry code, when deciding on placement for a site, carriers are required to consider community-sensitive locations such as schools and hospitals, and balance this with factors such as coverage objectives and engineering requirements. Further information on carriers obligations is in the ACMA fact sheet, Placement of mobile phone towers. 11

7 Specific requirements for carriers in working with local government authorities are set out in the ACMA fact sheets Installation of telecommunications facilities a guide for local government and The mobile phone network infrastructure code and local government. ACMA has produced a set of frequently asked questions (FAQs), which explain what information communities can request about a facility and how community members can make comments about a proposed facility. The FAQs include information about how to make a complaint if you think a carrier has not complied with the code. Where to complain Objections under the Telecommunications Code of Practice should be directed initially to the carrier, within the time limits described earlier. Once a carrier has considered an objection and responded in writing, the objector may make a written request to the carrier to refer the objection to the TIO. Objections may be made directly to the TIO when: a carrier has failed to give notice in accordance with the Telecommunications Code of Practice or a carrier has refused to refer an objection to the TIO despite a request from the owner/occupier or the objector is not satisfied with the carrier s response to the objection. The TIO is unable to investigate land access complaints where the complainant has not followed the correct objection procedure, unless both parties have agreed to refer the matter to the TIO. The TIO has no jurisdiction to assess compensation for financial loss or damage resulting from a carrier exercising statutory powers under Schedule 3 of the Telecommunications Act. Under Clause 42 of Schedule 3, failing agreement between a carrier and landowner, a reasonable amount of compensation for financial loss or damage is to be determined by a court of competent jurisdiction. The TIO is not a court of competent jurisdiction as defined under Clause 42(3) of Schedule 3. The TIO has jurisdiction over complaints about failure by a carrier to take all reasonable steps to cause as little detriment, inconvenience and damage as reasonably practicable. The TIO can investigate a complaint where a carrier fails to restore the property to a condition similar to its condition before the activity began. After completion of an investigation, the TIO may direct that the carrier restore the land to a reasonable standard or reimburse the complainant for remediation work required to be carried out. In the absence of a conciliated settlement, the TIO has the power to make a binding decision against a member carrier up to a value of $10,000, or a recommendation up to $50,000. If the total amount involved in a claim is more than $50,000, the TIO may make a finding of fact, but cannot make a direction or recommendation about compensation or other remedial action. More information about this and the right of consumers to claim compensation in certain circumstances is on the TIO website at If the claim is over $50,000 and is well substantiated, other forms of dispute resolution may be considered or actioned under clause 42 of Schedule 3 to the Telecommunications Act. Overhead cabling is not a low-impact facility. In installing aerial cabling, a carrier is not exercising powers under Schedule 3 and therefore the TIO does not have jurisdiction to consider an objection to the installation of aerial cabling. Subject to the rights to complain to the TIO, complaints regarding alleged (or potential) breaches of Schedule 3 to the Telecommunications Act may be directed to ACMA. Complaints about an alleged breach of the Deployment of Mobile Phone Network Infrastructure Code should be directed initially to the relevant carrier. Should the matter fail to resolve, the complaint may be directed to ACMA, with a copy of the written complaint to the carrier and the carrier s response. See More information for contact details. More information INSTALLING TELECOMMUNICATIONS FACILITIES More information about installing telecommunications facilities is on the ACMA website at (go to For licensees & industry: Licensing & regulation > Telecommunications: Telecommunications regulation > Infrastructure > Infrastructure - installation of facilities), or contact ACMA s EME and Telecommunications Infrastructure Section on telephone (02) , fax (02) , or infrastructure@acma.gov.au. LEGISLATION, REGULATIONS, CODES AND INDUSTRY GUIDELINES A consolidated version of the Telecommunications Act 1997 (as amended) is on the Attorney-General s Department Comlaw website at (put name and date of the Act in the Find Current Law search field.) A consolidated version of the Telecommunications (Lowimpact Facilities) Determination 1997 (as amended) is also on the Comlaw website (use the Find Current Law search field). The Telecommunications Code of Practice 1997 (as amended) in consolidated form is on the Comlaw website (go to the Find Law by Number and Year field, select the Legislative Instruments (2005+) category and key in the code name and date in the Find Current Law field)

8 The industry code, ACIF C564:2004 Deployment of Mobile Phone Network Infrastructure, is on the Communications Alliance website at For more information about the code, refer to the ACMA fact sheets, Installation of telecommunications facilities a guide for local government and The mobile phone network infrastructure code and local government, on the ACMA website at (go to About ACMA: Publications & research > ACMA publications > Fact sheets). The Digital Building Telecommunications Access Guidline is available for purchase through the Australian Building Codes Board website at FACT SHEETS AND FAQS FAQs about the industry code and about mobile telephony, health and the regulation of electromagnetic energy are on the ACMA website at (go to For the public: Consumer & community advice > Electromagnetic Radiation (EMR) & safety > EME website > What should I know about mobile phones > Frequently asked questions. The fact sheets, Placement of mobile phone towers, The mobile phone network infrastructure code and local government, Installation of telecommunications facilities a guide for local government and Installation of telecommunications facilities a guide for consumers, are on the ACMA website (go to About ACMA: Publications & research > ACMA publications > Fact sheets. Information about electromagnetic energy, including fact sheets, is on the ACMA website and on the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) website at TELECOMMUNICATIONS INDUSTRY OMBUDSMAN For information about the TIO s role in dealing with low-impact facilities, contact the TIO on telephone (toll free) or see the TIO website at and go to About Us > Policies & Procedures > Part C: TIO Position Statements > Land Access. There is also FAQ information on low-impact facilities on the TIO website under Home > Residential & Small Business Consumers > Frequently Asked Questions > Land Access). See also the TIO newsletter, TIO Talks, 34, July 2005 for other relevant articles. ACMA offices Canberra Central Office Purple Building, Benjamin Offices Chan Street, Belconnen PO Box 78, Belconnen ACT 2616 Tel: Fax: Melbourne Central Office Level 44, Melbourne Central Tower 360 Elizabeth Street, Melbourne PO Box Law Courts Melbourne Vic 8010 Tel: Fax: TTY: Sydney Central Office Level 15, Tower 1 Darling Park 201 Sussex Street, Sydney PO Box Q500 Queen Victoria Building NSW 1230 Tel: , Fax: New South Wales Region (including Canberra, Coffs Harbour and Newcastle Operations Centres) PO Box Q500 Queen Victoria Building NSW 1230 Tel: Fax: nswro@acma.gov.au Southern Australia Region (including Adelaide, Hobart and Wodonga Operations Centres) PO Box Law Courts Melbourne Vic 8010 Tel: Fax: saro@acma.gov.au Northern Australia Region (including Cairns, Darwin, Rockhampton and Townsville Operations Centres) PO Box 288 Red Hill Qld 4059 Tel: Fax: naro@acma.gov.au Western Australia Region PO Box 6189 Perth Adelaide Terrace WA 6832 Tel: Fax: waro@acma.gov.au 14 15

9 Commonwealth of Australia 2007 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Commonwealth. Requests and inquiries concerning reproduction and rights should be addressed to the Manager Communications and Publishing, Australian Communications and Media Authority, PO Box Law Courts, Melbourne Vic ISBN Please note: This document is intended as a guide only and is considered correct at the time of publishing. For this reason, the information contained here should not be relied on as legal advice or regarded as a substitute for legal advice in individual cases.