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Change closer for Telecommunications carriers powers and immunities framework

In September 2020 the federal government released a discussion paper on the need to further improve Telecommunications carriers powers and immunities framework, and invited comment on 12 proposed solutions designed to modernise operations. (See our article – Improved powers and immunities framework in time for 5G) At the time, we assisted a number of interested stakeholders, ranging from local authorities to landowners understand the various implications and frame appropriate submissions to the federal government.

These carrier powers and immunities from Schedule 3 of the Telecommunications Act 1997 remain critical to the efficient construction and maintenance of telco networks, but also must protect the safety and rights of the landowner. Obviously this is a delicate balance to achieve and could be the reason change is taking so long and requiring so much consultation.

The next step in the right direction has taken several more months, but finally comes with the March 1, 2021 release of drafted amendments to the Telecommunications Code of Practice 2018 (Code of Practice) and Telecommunications (Low-impact Facilities) Determination 2018 (LIFD). The intent is to assist stakeholder understanding of the effects of the proposed changes under what is known as Tranche One of the amendments and primarily relates to the following areas:

  • clarifying and reinforcing carrier safety requirements
  • amending Telecommunications Industry Ombudsman referral conditions
  • regulating notice withdrawals for cancelled works
  • increasing the maximum sizes of some low-impact facilities, and
  • increasing the co-location volume limit in commercial areas.

The aforementioned Code of Practice and LIFD are intended to work in unison to ensure carriers exercise their powers and immunities safely and in compliance with industry standards and codes.

Code of Practice amendments

The proposed amendments to the Code of Practice primarily relate to the following proposals:

  • Clarify existing safety conditions;
  • Introduce a new engineering certificate requirement;
  • Introduce a new requirement for carriers to withdraw notices for cancelled activities;
  • Introduce a new power for carriers to refer a matter to the Telecommunications Industry Ombudsman, after they have made reasonable efforts to resolve the matter in good faith; and
  • Include a timeframe in which carriers must refer landowner-requested objections to the Telecommunications Industry Ombudsman.

LIFD amendments

The proposed amendments to the LIFD primarily relate to the following proposals:

  • Increase the maximum protrusion length of antennae from 3 metres to 5 metres;
  • Increase the maximum diameter of a radiocommunications dish from 1.8 metres to 2.4 metres;
  • Amend the current tower extension conditions to include commercial areas, and to allow for subsequent extensions to a tower up to a cumulative maximum height of 5 metres; and
  • Increase the maximum co-location volume limit in Commercial areas from 25% to 50%.

To summarise the key points

Determining exactly what amendments will produce the best outcomes for all involved is a process that has been ongoing since 2017. With the added strain on telecommunications networks that COVID provided, and the current rollout of 5G technologies, it is clear this update is now becoming increasingly urgent to finalise. 

As a result, we see measures to allow for faster expansion of networks by increasing size and co-location limits on facilities. The idea is that by allowing larger facilities we will also see the impact on local visual amenity reduced as less separate new facilities are required. At the same time, safer installation is being checked through new certifiable facility classifications where the structural integrity of an asset or encumbered infrastructure could raise safety concerns among landowners. 

Further details are set out in the Explanatory Statement for the Telecommunications (Low-impact Facilities) Amendment Determination 2021, which can be found here.

Still to come…

With Tranche One consultations closing on 1 April 2021, we anticipate the proposed amendments will be released soon after this further round of consultation. 

Tranche Two amendments, if we are reading between the lines, seem to have either a lower priority or fall into a much harder basket, and may take a little longer (as with the approach adopted in the 2017 and 2018 amendment phase). These deferred “tranche two” aspects relate to the possible development of amendments regarding smart poles (a significant concern raised in October 2020 submissions); redundant facility management; and extending notification timeframes. No doubt further stakeholder consultation will ensue, and will be the subject of much robust debate. We will continue to keep you posted. 

In the meantime, if you need clarification or legal representation, contact our expert Telco Team today.