COMMENTARY: DRAFT BYLAWS FOR THE DEPLOYMENT OF ELECTRONIC COMMUNICATIONS FACILITIES, 2022

Chapter 4 of the Electronic Communications Act, 2005, or “ECA”, provides for the rapid deployment of electronic communications facilities by way of regulations following publication of policy and policy directions by the Minister. There are no regulations, but the draft Bylaws attempt to streamline the process among hundreds of municipalities for applications for and the grant of what are known as “wayleaves”.  These are rights to access, traverse and use land administered by the Government (but not to occupy it in the same way that a lease would allow occupation). In countries such as the UK, best practise guidelines have been developed for this purpose.₁  The draft Bylaws suggest that a wayleave is “personal” in that it operates in favour of the person that applies (see definition).  This is not the case for the other Agreements mentioned (see below) which can be transferred with prior permission from the municipality, but apparently without the wayleave.

While the primary purpose of the draft Bylaws is to address the process for wayleave applications, other types of agreement are mentioned, and a Municipal Lease Agreement is a prerequisite for deployments in addition to a Wayleave (but included under Prohibitions). The Bylaw doesn’t govern Lease Agreements and it’s unclear where the Land Use Agreement fits in. Wayleaves don’t appear to authorise maintenance, since “maintenance works” wayleaves are dealt with separately.

Good news for towerco’s – the draft Bylaw applies to “persons” seeking to access land, not to licensees only. In fact, even contractors and agents can apply. At some point (subject to a different but unspecified process) a municipality can offer “incentives” to persons to deploy facilities in areas without access to “affordable” broadband services. Services are, however, legally distinct from the deployment of facilities, and this is not addressed in the draft.

While the draft Bylaws do contain timelines for certain steps, the process could be interrupted, for example, by a requirement to have “public participation”. The list of “third parties” to be consulted by an applicant (presumably to obtain their consent) is undefined. While a municipality should, in theory, have notice of all other utilities’ infrastructure and third-party rights in the area, experience says they do not. Applications for “emergency works” wayleaves must be made separately and are also subject to an open-ended list of requirements which may prove challenging in emergency situations.

The types of conditions that a municipality may apply are open-ended and the bank guarantee requirement is excessive, having regard to what it is for. The cost to maintain the guarantee at an unspecified amount (which could be disputed by the municipality) is likely to prejudice small companies.  Decommissioning of facilities is proposed to be subject to consultation and municipal instruction, which is separate from rehabilitation (which would be required under NEMA₂ in any event) and vague.  Vegetation is dealt with in Chapter 4 of the ECA, along with other issues like fences, so a bylaw cannot change these provisions.

This commentary is offered for free, but it is not legal advice and should not be relied on without more context.
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₁ Guidance on access agreements – GOV.UK (www.gov.uk)
₂ National Environmental Management Act, 1998.