15 June 2017

Telco Facilities and Immunities

The national government is conducting a Consultation on possible amendments to telecommunications carrier powers and immunities, centred on facilities.

The paper states
Telecommunications services play an important and expanding role in how people, businesses and governments go about their daily lives. The Australian Government is committed to Australians having ready access to high-quality, reliable and affordable telecommunications services. 
To help provide Australians with better telecommunications services more quickly and cost effectively, telecommunications carriers have powers and immunities under Schedule 3 of the Telecommunications Act 1997 (the Act). These powers and immunities help them install and maintain telecommunications network facilities. 
So they can better meet consumer’s needs faster and at lower cost, telecommunications carriers have asked the Australian Government to consider making changes to carrier powers and immunities. This would include changes to the Telecommunications (Low-impact Facilities) Determination 1997 (LIFD), the Telecommunications Code of Practice 1997 (Tel Code) and potentially Schedule 3 to the Act itself. The telecommunications industry has indicated that the changes could lead to significant time and cost savings and improved services to the community. It will also reduce burden on government and other agencies to administer these regulations. Generally, the proposed changes would:
  • clarify the operation of existing powers and immunities (e.g. heritage overlays), 
  • allow some increases in the size of existing facilities (e.g. solar cells), 
  • allow some new type of facilities (e.g. lens antennas) , 
  • allow some types of facilities in new areas (e.g. omnidirectional antennas), 
  • alter some land owner and occupier notification and objection timeframes and processes in the Tel Code, and 
  • potentially, enable temporary or replacement towers or extensions to be installed in some limited circumstances
The paper states Carrier powers and immunities give telecommunications carriers the ability to enter land and install and maintain some types of telecommunications network facilities. They are critical to the efficient construction and maintenance of telecommunications networks. They minimise the regulatory burden on carriers so that they can quickly and cost-effectively meet the community’s need for access to affordable, fast and reliable telecommunications services. 
Most aspects of carrier powers and immunities have been in place since 1997. Since then, communications technologies have evolved rapidly, and demand for services and data has increased dramatically. For example, in 1997, Wi-Fi was a new technology and not widespread, mobile phones did not connect to the internet, and only 25 per cent of Australians had a mobile phone subscription . 
Telecommunications carriers have proposed that powers and immunities should be amended to reflect new technologies, enhanced work practices, and reduce the regulatory cost and burden. Where carrier powers and immunities do not apply, carriers are typically required to seek planning approval for their activities under differing state and territory planning laws. These approval processes can significantly increase the time and costs for carriers to install facilities that are important for improving telecommunications services to the community and businesses. These costs flow through to consumer prices. Giving carriers uniform, streamlined powers and immunities under Commonwealth law helps them meet consumer demand for services while reducing the administrative burden on carriers and state, territory and local governments. 
Carriers have estimated that if the proposed changes proceed, they could result in over $100 million per year in regulatory cost savings to industry and government and over $50 million per year in economic and social productivity benefits to consumers. ... 
Carrier powers and immunities are set out in Schedule 3 to the Act. Schedule 3 provides carriers with powers to enter land (including public areas of buildings) for inspection, and to install and maintain certain types of facilities. It also provides certain immunities, including from a range of State and Territory laws when carrying out those activities, such as those laws relating to land use, planning, design, construction, siting, tenancy, environmental assessments and protection. These are collectively referred to as ‘planning laws’ in this paper. 
Most importantly, Schedule 3 covers the installation of ‘low impact facilities’, which are specified in the LIFD and discussed further below. When using carrier powers and immunities, the Act requires carriers to notify affected land owners and occupiers of their intended activities, and give them the opportunity to object. The Act also imposes a range of conditions on carriers engaging in authorised activities, including a requirement to comply with the conditions in the Tel Code which are discussed below. It requires carriers to do as little damage as practicable and restore land to a condition that is similar to before the activity began. They must act in accordance with good engineering practice, protect the safety of people and property, interfere with other users of the land as little as practicable, and protect the environment. Compliance with the requirements under Schedule 3 to the Act is a carrier licence condition. 
If Schedule 3 to the Act does not cover a particular telecommunications facility, carriers need to comply with applicable State and Territory planning laws and obtain landowner consent. For example, Schedule 3 does not permit new free standing telecommunications towers to be specified as low impact facilities. These facilities must be authorised through relevant state and territory planning laws, which typically require a development application.