Paris, 3 December 2003
Autorité de régulation des telecommunications (ART) has made public a study it commissioned from the legal firm Latournerie Wolfrom & Associés on the installation of telecommunications networks on public and private property.
- The context of the study
In the Post and Telecommunications Code, the installation of telecommunications networks is organised around two main ideas:
- allowing new network operators access to public and private property
- seeking to optimise the conditions of occupation of public property
A number of questions have been raised by the installation of telecommunications networks on public or private property (amount of fees for occupation of public property, equal operator access to public property, etc.).
- Presentation of the study
- The rights and obligations of property owners and public property managers with respect to telecommunications operators on public roadways, other public property and private property
The study reviews the legally-recognised "right of passage" of operators on public and private property, established by Community texts and the Post and Telecommunications Code. The concept was introduced in the framework of the deregulation of the telecommunications sector, in order to simplify the deployment of new networks and permit the rapid creation of new service offers.
The study analyses the Conseil d’Etat’s motivations, in its "SIPPEREC" judgement, for cancelling the entire regulatory apparatus applicable to the occupation of public roadways by telecommunications operators and the consequences of the cancellation. The study also briefly presents the new Community legal framework ("telecoms packet") and the national texts currently in preparation, which will define the system of law of "rights of passage" (draft law regarding electronic communications and audiovisual communication services, future article L. 1425-1 of the Local and regional collectivity code).
- The various legal and financial schemes established between property owners or the managers of public property and telecommunications operators regarding the installation and ownership of infrastructures on the property
The study explains how, in practice, certain territorial authorities and managers of the public property have tried to rationalise the occupation of their public property by signing framework agreements with operators and setting up "one-stop shops" in order to encourage and/or optimise the deploymentof telecommunications installations on their territory.
The study also describes how telecoms operators use existing infrastructures created for sewerage, drinking water distribution or urban heating systems, as well as shared installations and infrastructures.
- The control of judges on the installation of telecommunications networks on public and private property
The study analyses in detail the clarifications offered by administrative jurisprudence on the scope of rights of passage on public roadways and on operators’ right of access to public property (excluding roadways). It also reviews the role of civil judges, in particular as concerns disputes regarding the establishment of means for implementing easement on private property. The study highlights the very small number of decisions taken on the subject.
- Preventing trespassing on telecommunications network installations
The study briefly discusses the system of law for the prevention of accidental and intentional trespassing on telecommunications installations (applicable texts, fines charged, etc.).
- The future of telecommunications network installations established on public property under a property occupation authorisation or agreement
The study reviews the possibility for operators to be recognised as the owners of facilities built on public property for the duration of the authorised occupation and the consequences of the expiry of the title of occupation on this "private appropriation".