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Improved powers and immunities framework in time for 5G

Since 1997, the ‘powers and immunities framework’ laws at the Commonwealth level have enabled telecommunications carriers to deploy equipment classified as ‘low-impact’ in a nationally consistent way. To support the upcoming scale and level of carrier investment required for the 5G networks, this framework has been undergoing review to ensure its effectiveness in today’s operating environment.

To improve the operation of the existing powers and immunities framework, the Department of Infrastructure, Transport, Regional Development and Communications established the Powers and Immunities Reference Group (PIRG), comprised of carriers and property owner stakeholder groups including the Property Council of Australia, the Australian Local Government Association, rail and road authorities, and water and energy utilities. Since its formation in 2018, the PIRG has met 8 times and recommended just 6 reforms to the powers and immunities framework.

Back in 2017 and 2018 we commented on the proposed and actual changes implemented to the low impact determination. Powers and immunities are important as they provide a nationally consistent framework for the deployment of telecommunications facilities that both reduces cost for carriers and ensures carrier powers are used appropriately and landowner interests are protected.

Fast forward to September 2020 and the government has just released a paper discussing the needs to further improve the powers and immunities framework, and inviting comment on proposed solutions from within the sector. Proposals consider everything from tower height extensions to responsibility for removal of redundant equipment, inclusion of indicative timeframes on LAAN (Land Access Activity Notice) and objections processes for landowners. The objective is to try to remedy some of the major issues and confusion that the LAAN has generated amongst landowners and carriers. The length of time it has taken to come thus far indicates it is a complex negotiation process to ensure both carriers and landowners are protected as we look ahead to 5G network rollouts.

Our Summary

The government’s Improving the telecommunications powers and immunities framework publication highlights a number of proposals that will affect carriers and landowners alike. Each proposal is accompanied by a series of prompt questions as the Department seeks feedback from stakeholders.

  1. Standardised notification process for carriers, ie. universal LAAN – and if this were deemed possible, to what extent would the inclusion of a standardised notification process increase or decrease regulatory burden, and at what cost per notification?
  2. Requirement for carriers to give notice if they do not follow through with an activity they previously issued a notice for – to reduce confusion of landowners who are issued another notice for the same or similar activity that they thought had already been completed.
  3. Extending the notification timeframe, ie. when carriers must provide notice of activity, from 10 business days to 20 business days to provide additional assurance to public utility landowners that they can meet the objection timeframes. Questions being considered include:
    • What are the benefits (financial and non-financial) of a non-regulatory approach in providing a longer notification timeframes?
    • What are the benefits (financial and non-financial) of a regulatory approach in providing a longer notification timeframe?
    • Should longer notification timeframes apply to all landowners, and not be limited to landowners that are public utilities and road authorities?
    • What would be the benefits (financial and non-financial) of providing a longer timeframe for objections to be made to carriers about proposed activities?
    • What other factors should be considered when considering whether to extend notification or objection timeframes?
  4. Carriers (rather than landowners as currently the case) to be responsible for providing engineering certificates where required. Issues to be considered include:
    • What benefits would landowner or occupiers see in the provision of an engineering certificate within 30 business days after the certification has been received?
    • Would the provision of an engineering certificate to landowners increase the regulatory burden on carriers? If so, what is the estimated regulatory financial impact per year?
  5. Introducing factsheets on the objection process to increase clarity for landowners, questions being asked include:
    • Is the objections process as set out in the Code of Practice clear and easily understood by landowners and occupiers? If no, what parts of the process need further explanation?
    • Does the information provided by carriers when giving notice of a proposed activity outline the objections process, or only the first step, that is, to make the objection in writing to the carrier?
    • How could the objection process be better communicated to landowners and occupiers?
  6. Introducing the ability for carriers, instead of only landowners, to refer objections to the TIO in cases where resolution of matters directly with the landowner seems unlikely. Noting that the costs to resolve the dispute are borne by the carrier, which incentivises carriers to resolve the dispute through non-regulatory means.

The proposals in this paper seek to improve the powers and immunities framework by providing greater certainty and transparency to landowners, occupiers and communities, while allowing industry to deploy telecommunications equipment to support new and expanded uses of mobile technologies.

The Department of Infrastructure, Transport, Regional Development and Communications welcomes feedback on these proposals, with submissions being accepted until Friday, 16 October 2020. To participate, find more details here.

If you require specific advice regarding any LAAN transaction, contact our expert Telco team today.


Related articles:

Expansion of Telco Carrier Powers and Immunities

Telecommunication reforms further delayed to achieve balance

The imprecise process of Land Access Notice (LAAN) objections