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COMMUNICATIONS REGULATION ACT, 2002
Electronic Communications Infrastructure Road Works and Sharing
Interpretation (Part 5).
52. —(1) In this Part, except where the context otherwise requires—
“Act of 2000” means Planning and Development Act, 2000;
“consent” means a consent granted by a road authority under section 53 (3) to open a public road;
“duct” means a pipe or tube for the carriage of electronic communications infrastructure;
“electronic communications infrastructure” means any part of an electronic communications network;
“emergency roadworks” means roadworks necessary to eliminate or reduce danger or risk to persons or property;
“land” includes seashore, land covered with water (whether inland or coastal), foreshores and any interest or right in or over land;
“network operator” means any person who provides or operates an electronic communications network;
“physical infrastructure” means infrastructure which is capable of supporting electronic communications infrastructure including ducts, poles, antennae support structures and rights of way over land, but does not include electronic communications infrastructure;
“physical infrastructure provider” means a network operator or any other person which allows any part of its physical infrastructure to be used by any other network operator for the provision of electronic communications services;
“physical infrastructure sharing” means the sharing of the use of all physical infrastructure for the purpose of providing electronic communications services;
“planning authority” has the meaning assigned to it by the Act of 2000;
“public road” means a road over which a public right of way exists and the responsibility for the maintenance of which lies with a road authority;
“road” has the meaning assigned to it by the Roads Act, 1993 ;
“road authority” has the meaning assigned to it by the Roads Act, 1993 ;
“roadworks” means the opening of a public road for the purpose of the establishment, extension, replacement, removal or maintenance of works on electronic communications infrastructure.
(2) In this Part a reference to the Commission shall be construed before the establishment day as a reference to the Director.
(3) For the avoidance of doubt this Part comes into operation on the passing of this Act.
Opening of public road for establishment of underground electronic communications infrastructure.
53. —(1) A network operator shall not commence or carry out or cause to be commenced or carried out any road works unless—
(a) the operator has obtained the prior written consent under subsection (3) of the road authority, in whose functional area the operator proposes to carry out the road works, and
(b) the network operator or any person engaged by the operator complies with any conditions contained in the consent.
(2) A network operator or a person engaged by the network operator who contravenes subsection (1) is guilty of an offence and is liable—
(a) on summary conviction, to a fine not exceeding €3,000, or
(b) on conviction on indictment, to a fine not exceeding €1,000,000.
(3) Subject to this section and any regulations under section 56 (2), a road authority may grant consent to a network operator, upon application to it by the operator, to open a public road in the functional area of the road authority for the purposes of—
(a) establishing underground electronic communications infrastructure and any associated physical infrastructure,
(b) extending the underground electronic communications network to parts of the road under which electronic communications infrastructure has not previously been placed by that network operator, or
(c) carrying out work upon underground electronic communications infrastructure, being maintenance, repair, replacement or the addition or removal of underground electronic communications infrastructure which requires the opening of the road,
subject to any conditions contained in the consent.
(4) Any conditions contained in a consent—
(a) shall not discriminate unfairly between network operators, and
(b) shall be consistent with the need for the road authority to carry out its functions under this Part and under the Roads Acts, 1993 to 2001, and the Road Traffic Acts, 1961 to 2002,
and the road authority granting the consent shall notify the network operator, in writing, of the reason for such conditions.
(5) A road authority may, subject to any regulations under section 56 (2), impose charges on network operators—
(a) for the grant of consents to cover the administrative costs, including costs involved in monitoring compliance with consents, incurred by the road authority under this section, and
(b) for reasonable costs it may incur in making good long term damage to a road as a result of road openings carried out by the network operator.
(6) When considering an application for a consent, a road authority shall have regard to—
(a) the existing and potential use and availability of space under the surface of the road concerned, including—
(i) the course and depth of ducts to be laid by the applicant,
(ii) the existence of ducts in addition to those which are immediately required by any network operator, and
(iii) the existence of duct space in addition to that which is reasonably required by any network operator,
(b) traffic control,
(c) the protection of the environment and of amenities including residential amenities,
(d) the manner and timing of the reinstatement of the road, and
(e) any scheme adopted under subsection (7).
(7) A road authority may formulate and, after public consultation, adopt a scheme setting out its policy regarding—
(a) the use of underground road capacity, including the rationing of any particular underground spaces below roads,
(b) conditions (including restrictions and requirements) that may be imposed by it in relation to the grant of consents, either generally or with respect to specific areas or circumstances,
(c) refusal of consents, either generally or with respect to specific areas or circumstances,
(d) charges for consents and provision for repair of long term damage to roads,
(e) emergency roadworks.
(8) The Minister for the Environment and Local Government, in consultation with the Minister, may issue guidelines to be followed by a road authority in relation to public consultation regarding a scheme drawn up by it under subsection (7).
(9) A road authority shall consult with the Commission before attaching a condition to a consent requiring the applicant to lay additional ducts.
(10) Where the holder of a consent fails to comply with any condition attached to a consent, the road authority which granted the consent may withdraw the consent.
(11) Where a road authority proposes—
(a) to refuse to grant consent,
(b) to grant consent subject to conditions, or
(c) to withdraw a consent granted by it,
the road authority shall notify the network operator concerned in writing of the proposal and shall include in the notification a statement of the reasons for the proposal and of the right of the network operator to make representations to the authority under subsection (12).
(12) A network operator may, within 21 days of the receipt by the operator of a notification under subsection (11), make representations to the road authority in relation to the proposal.
(13) (a) Where, after consideration of any representations made by the network operator under subsection (12), a road authority decides—
(i) to refuse to grant consent,
(ii) to grant consent subject to conditions, or
(iii) to withdraw its consent,
the road authority shall, not more than 21 days after the expiration of the period specified in subsection (12), notify the network operator in writing of its decision and shall include in the notification a statement of the reasons for the decision and of the right of the network operator to appeal the decision under subsection (14).
(b) Where a road authority does not receive representations from the network operator within the period specified in subsection (12), the road authority shall, not more than 21 days after the expiration of that period, notify the network operator in writing of its decision—
(i) to refuse to grant consent,
(ii) to grant consent subject to conditions, or
(iii) to withdraw its consent,
and shall include in the notification a statement of the reasons for the decision and of the right of the network operator to appeal the decision under subsection (14).
(14) A network operator may, within 28 days of the receipt by the operator of a notification under subsection (13), appeal to the High Court against the decision concerned and the Court may—
(a) confirm the decision,
(b) amend the decision, or
(c) direct the road authority to grant the consent or refrain from withdrawing consent, as the case may be.
(15) Subject to section 56 (2), a network operator shall not require the consent of a road authority to carry out emergency roadworks, but shall inform the road authority of such roadworks as soon as practicable in advance of the commencement of those roadworks.
(16) A network operator shall be responsible for all costs incurred in the reinstatement of a road which the operator has opened for the purpose of—
(a) the establishment of underground electronic communications infrastructure, or
(b) maintenance, repair, replacement or the addition or removal of underground electronic communications infrastructure,
to a standard satisfactory to the road authority.
(17) The requirement to hold a licence under section 254 of the Act of 2000 in respect of subsection (1)(e) of that section does not apply where a network operator has obtained a consent.
(18) A network operator shall, on a request being made by a road authority, provide among other things—
(a) such information as the road authority may require in relation to the utilisation of underground electronic communications infrastructure owned or operated by the operator, and
(b) such access to underground electronic communications infrastructure owned or operated by the operator,
as may be necessary to enable the road authority to exercise its functions under this section.
(19) A road authority may apply to the High Court for an order—
(a) by way of injunction, to prohibit any non-compliance, or
(b) by way of mandamus, to direct any compliance,
with a requirement of this section and the Court may grant such order as it sees fit.
(20) This section is without prejudice to section 101D (inserted by the Dublin Transport Authority (Dissolution) Act, 1987 ) of the Road Traffic Act, 1961 (which relates to directions given by local authorities to persons carrying out roadworks).
(21) A summary offence under subsection (2) may be prosecuted by the road authority within whose functional area the offence is committed.
Use of public road for establishment of electronic communications infrastructure overground.
54. —(1) Section 254(1) of the Act of 2000 is amended by inserting after paragraph (e) the following paragraph:
“(ee) overground electronic communications infrastructure and any associated physical infrastructure,”.
(2) A network operator shall be responsible for all costs incurred in the reinstatement of a road to a standard satisfactory to the road authority concerned arising from the opening of the road by the operator for the purpose of—
(a) the establishment of overground electronic communications infrastructure, or
(b) maintenance, repair, replacement or the addition or removal of overground electronic communications equipment.
(3) This section is without prejudice to section 101D of the Road Traffic Act, 1961 .
Cost apportionment for electronic communications infrastructure relocation due to road improvements.
55. —(1) Notwithstanding section 254(4) of the Act of 2000 and subject to subsection (2) and (4), where a road authority undertakes work for the purposes of improving a road, it shall pay to a network operator all reasonable costs incurred by the operator in the relocation of its electronic communications infrastructure and any associated physical infrastructure necessitated by and directly attributable to that work.
(2) Where electronic communications infrastructure and any associated physical infrastructure is replaced or improved by a network operator in the course of relocation due to road improvement, the road authority shall pay only the costs directly attributable to work done to electronic communications infrastructure and any associated physical infrastructure as a result of roadworks which would have been incurred if the electronic communications infrastructure and any associated physical infrastructure existing immediately before the road improvement had been relocated.
(3) A network operator shall be responsible to a road authority for any costs incurred by the road authority where the network operator fails to carry out the relocation of its electronic communications infrastructure in a safe, expeditious and efficient manner.
(4) Where a road authority, on an application to it by a network operator to carry out roadworks over, along, on (under section 254 of the Act of 2000) or under (under section 53) a public road, gives the operator notice that the road is due to be improved by the authority within the period of 18 months of the date from which the operator intends to carry out the works, the road authority shall not be responsible for the cost of relocating electronic communications infrastructure or anything connected with the works where the road improvement proceeds within that period.
(5) Where a dispute or difference arises between a network operator and a road authority in respect of the cost of the relocation of electronic communications infrastructure, the dispute or difference shall be determined by agreed conciliation procedures between both parties or, in default of such agreement, by arbitration under the Arbitration Acts, 1954 to 1998.
Regulations and policy of directions to road authorities.
56. —(1) The Minister may, with the consent of the Minister for the Environment and Local Government, make regulations for the purposes of sections 54(2) and 55—
(a) to establish the basis for the calculation by a network operator of costs reasonably attributable to costs incurred by the network operator as a result of roadworks, and
(b) to establish an objective measure of works to be deemed to be improvements to electronic communications infrastructure for the purposes of this Part.
(2) The Minister for the Environment and Local Government may, with the approval of the Minister, make regulations for the purposes of section 53 in relation to—
(a) any conditions, restrictions or requirements to be made in a consent,
(b) the imposition of charges by road authorities in respect of consents,
(c) anything to be contained in schemes under section 53 (7), and
(d) emergency roadworks.
(3) The Minister for the Environment and Local Government, after consultation with the Minister, may, subject to any regulations under this section, issue policy directions to road authorities in connection with the exercise of the powers of road authorities under this Part.
Physical infrastructure sharing by infrastructure providers.
57. —(1) This section applies to that part of the infrastructure of a physical infrastructure provider which is used to support electronic communications infrastructure and to no other part of the infrastructure.
(2) A network operator has the right to negotiate an agreement to share physical infrastructure with other infrastructure providers and may, upon the commencement of any negotiations, serve notice on the Commission of such negotiations.
(3) The Commission may, on its own initiative, or shall, if so requested by either party, specify the period within which negotiations on physical infrastructure sharing shall be completed.
(4) Where agreement is not reached within the period specified by the Commission under subsection (3), the Commission shall take such steps as are necessary to resolve the dispute in accordance with the procedures referred to in subsection (6).
(5) With regard to any intervention by the Commission referred to in subsection (3) or (4), the Commission may—
(a) having carried out a preliminary examination of the matter, decide not to intervene in those negotiations, or
(b) discontinue the intervention in those negotiations where the Commission considers that—
(i) the request for intervention is trivial or vexatious, or
(ii) the person making the request has not taken reasonable steps to reach an agreement on physical infrastructure sharing.
(6) The Commission shall resolve a dispute referred to in subsection (4) in accordance with procedures established and maintained by it and the procedures shall be made available, on a request being made for that purpose, to interested parties free of charge.
(7) In making a decision in relation to a dispute, the Commission may impose conditions for physical infrastructure sharing and such conditions may include, but not necessarily be limited to—
(a) conditions in respect of conformity with the relevant standards relating to establishment, operation, maintenance and repair of electronic communications infrastructure and physical infrastructure,
(b) compliance with essential requirements or the maintenance of the quality of electronic communications services or both, or
(c) rules for the apportionment of the costs of physical infrastructure sharing,
and the Commission shall notify, in writing, the network operator and physical infrastructure provider, as appropriate, of the reasons for such conditions.
(8) The procedures referred to in subsection (6) shall include provisions for public consultation during which all interested parties shall be given an opportunity to express their views.
(9) The Commission, in reaching a decision pursuant to the procedures referred to in subsection (6), shall take into account, inter alia—
(a) the interests of consumers of electronic communications services,
(b) any requirements imposed by an enactment or instrument made thereunder,
(c) the public interest, including traffic control and the protection of the environment and of amenities,
(d) the desirability of encouraging the sharing of electronic communications infrastructure,
(e) the provision of electronic communications services that are not available at the time of the making of the conditions,
(f) the availability of alternatives to the physical infrastructure sharing requested,
(g) the need to provide access to the market for electronic communications services to network operators,
(h) the need to maintain the security of electronic communications networks and the ability of providers of electronic communications services to use different types of electronic communications infrastructure and physical infrastructure,
(i) the nature of the request in relation to the resources available to the network operator or physical infrastructure provider concerned to meet that request,
(j) the promotion of competition between electronic communications services providers, and
(k) the need to maintain a universal service.
(10) In this section, “universal service” means the services which are made available, in accordance with the European Communities (Voice Telephony and Universal Service) Regulations 1999 (S.I. No. 71 of 1999) or any regulations amending or replacing those Regulations, to all consumers of electronic communications services independent of their geographical location.
Lopping of trees.
58. —(1) Subject to this section, a network operator, or any person authorised by him or her in that behalf, may lop or cut any tree, shrub or hedge which obstructs or interferes with any physical infrastructure of the network operator.
(2) Before lopping or cutting any tree, shrub or hedge under this section, a network operator shall give to the landowner or occupier of the land on which the tree, shrub or hedge is standing, notice in writing of its intention to do so and, after the expiration of 28 days from the date of such service, the network operator may lop or cut any tree, shrub or hedge where the landowner or occupier has not already done so.
(3) A network operator may, upon the expiration of the period contained in the notice served by the operator under subsection (2), enter the land (with or without vehicles) at any reasonable time.
(4) Where a network operator carries out the cutting or lopping referred to in subsection (1), he or she shall do so in a manner which causes the least damage to property or the environment or amenities.
(5) Where an occupier or landowner lops or cuts any tree, shrub or hedge under subsection (2), the expense incurred by him or her in so doing shall be paid to him or her on demand by the network operator and the amount of such expenses shall be recoverable from the network operator, in default of agreement, as a simple contract debt in any court of competent jurisdiction.
(6) A network operator shall not carry out the cutting or lopping of trees in contravention of an order under section 205 (which relates to the preservation of trees, a group of trees or woodlands) of the Act of 2000.
(7) Subsection (1) does not apply to any obstruction of or interference with signals transmitted by means of the radio frequency spectrum.
Repeals and revocation.
59. —(1) The enactments mentioned in column (2) of Schedule 2 are repealed to the extent mentioned in column (3) of that Schedule.
(2) Regulation 12 of the European Communities (Interconnection in Telecommunications) Regulations 1998 (S.I. No. 15 of 1998) is revoked.
Service of notices.
60. —(1) Where a notice or notification is required under this Part to be given to a person, the notice or notification shall be addressed to that person and shall be given to the person in one of the following ways—
(a) by delivering it to the person,
(b) by leaving it at the address at which the person ordinarily resides or carries on business,
(c) by sending it by post in a pre-paid registered letter addressed to the person at the address at which the person ordinarily resides or carries on business,
(d) if an address for the service of notices has been furnished by the person, by leaving it at, or sending it by pre-paid registered post addressed to the person to, that address,
(e) in any case where the person giving the notice or notification considers that the immediate giving of the notice is required, by sending it, by means of a facsimile machine, to a device or facility for the reception of facsimiles located at the address at which the person ordinarily resides or carries on business or, if an address for the service of notices has been furnished by the person, that address, provided that the sender's facsimile machine generates a message confirming successful transmission of the total number of pages of the notice.
(2) For the purposes of this section, a company registered under the Companies Acts, 1963 to 2001, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.