03 Apr Publication of the White Paper « Telecom rights of way for local authorities »
On March 28, 2019, during a conference of the Ecoter Mission in Paris, was presented the White Paper “Telecoms rights of way for local authorities”, produced by the firms Strategic Scout and Parme Avocats for the Banque des Territoires, a subsidiary of the Caisse des Dépôts.
Why this White Paper?
In France, despite a fairly simple legislative framework, the processing of rights of way is complex and heterogeneous. It is a source of legal uncertainty for operators of electronic communications but also for local authorities.
This complexity is primarily administrative, given the involvement of many local authorities in the areas concerned, which do not always have the means and the appropriate level of know-how. It is also financial, given the significant tariff disparity existing between types of public domain but also between managers of the public domain. Finally, it is technical, with regard to the different strata concerned by rights of way:
- Rights of way on or under the public domain, road or off-road, on or under the private domain, for the establishment of reception infrastructures (ducts, aerial supports, manholes, technical rooms) hosting passive equipment (optical cables, optical splice protection, etc.) of electronic communications;
- Rights of way in public infrastructures and networks for the implementation of passive electronic communications network equipment.
Today, the complexity of the management of the telecom rights of way is an obstacle to the full deployment of the superfast broadband on the territory by 2022 and to the coverage in 4G of the not-spots thanks to the “mobile New Deal”.
The purpose of the White Paper is to provide local authorities with a synthesis of the legal framework and of rights of way issues for electronic communications networks.
How was the White Paper welcomed by the communities?
The Ecoter Mission brought together local authorities, their joint ventures, electronic communication operators as well as the head of the Post and Electronic Communications Code within the General Directorate for Business in the ministry of industry.
Gilles Quinquenel, president of the agglomeration community of Saint-Lô, Mayor of Thereval, indicated from the outset that around him the right of way fee was not entirely called, for lack of a sufficiently rigorous management of the road wayleaves granted to operators, wayleaves that small municipalities do not have the means to manage. In order to generalize the good practices, Gilles Quinquenel proposes to add an annex to the Local Urbanism Plan, dedicated to the telecommunications infrastructures.
Dominique Leroy, General Manager of Seine-et-Marne Numérique, the joint venture between municipalities that deploys superfast broadband in this département, both urban and rural, of the Ile-de-France region, presented the management service of the right of way fee for the occupation of the public domain, managed by the joint venture on behalf of the municipalities. He also showed the stakes: a road wayleave being a precarious right of occupation of the public domain, to manage the obtaining and the renewal after fifteen years of his road wayleaves is a necessity for the joint venture, as well as for an operator, to perpetuate the ownership of his network.
Sylvain Barse, for the SIPPEREC, the joint venture in charge of electricity and electronic communications for the municipalities of the nearer suburbs of Paris, expressed his long struggle with the municipalities to obtain that the road wayleaves are managed in the PDF format and not on paper.
Mireille Bonnin, for the FNCCR (National federation of local authorities subcontracting a public service), helps local authorities draft their road wayleaves and calls for the creation of a centralized platform, based on the single point of contact managed by INERIS, National Institute of the industrial environment and risks, for the requests for financing by the State of superfast broadband networks of public initiative.
Operators also shared the finding of insufficient control of the subject by small municipalities. Guy Nouvet, for Orange, called for a joint research, between operators and communities, of co-investment opportunities introduced by Article L34-8-2-1 of the Code of Posts and Electronic Communications (CPCE), one of measures taken in transcription of the European directive n ° 2014/61/UE aimed at reducing the cost of deploying electronic communications networks (the so-called e-cost directive).
Olivier Cauvin, for CenturyLink (ex-Level3) underlined the specificities of the French management of rights of way in Europe: fragmentation of the public domain between multiple managers (municipalities, groups of municipalities, departments, state, public institutions), extreme variability of tariffs for the non-road public domain as compared to the private domain of these managers. A brilliant demonstration of the limits of the “French administrative mille-feuilles”.
The ministry’s point of view
Jean-Pierre Labé, head of the office of the regulation of electronic communications at the General Directorate for Businesses, has maliciously pointed out that the legislative framework is constantly evolving. The evolution of Articles L. 49 and R.20-51 of the CPCE in 2016 were transcribing the e-cost directive. The White Paper, which dates from October 2018, was made thirteen times obsolete by the ELAN law (law n ° 2018-1021 of November 23, 2018 on the evolution of housing, planning and digital), the chapter VII of which is titled “Simplifying the Deployment of Very High Capacity Electronic Communications Networks”. Jean-Pierre Labé also announces new changes to come with the transcription into French law of the European Code of Electronic Communications, in particular to facilitate the deployment of 5G.
The “Mobile New Deal” will introduce 10,000 new telecom masts. France is 26th out of 27 in 4G networks in Europe. It takes 2 years to build a mast in France where it takes 6 months in other European countries. The opinion of the Architects of the Buildings of France (ABF) can take several years. The code of intellectual property has changed: the opinion of the ABF is a simple opinion and no longer an assent. The limit of 12 meters for building permits for towers, instead of prior declarations, has been removed, except for installations of more than 20 sq mt. Electronic communications are exempt from competition for subcontracting construction works. The possibility for a mayor to withdraw an illegal authorization from a mast was suspended until 2022. Private domain wayleaves were also changed (Article L.48 of the CPCE). For the construction in continuity of urbanization, a derogation until 2022 was obtained. The “Abeille” law was slightly modified. Instead of 2 months, the approval time is only a month. To change the technology of a tower, it is an obligation to inform the mayor and no longer an authorization that is requested. For the design and construction contracts, we are no longer obliged to distinguish the two services until 2022. There are also changes concerning submarine cables. The one-stop order has been modified to bring it into line with article L. 49 of the CPCE. Operators pay to access this information. On the other hand, concludes Jean-Pierre Labé, for the homogenization of royalties, we have not been seized at the political level.
A suggestion for version 2 of the White Paper: to recall how economic logic and administrative law apply to tariffs and tax ceilings
The White Paper addresses a fascinating subject, both technically and legally. Its necessary update may be an opportunity to recall the logic behind the tariff, as regards the public road domain, and the ceiling, for the non-road domain, of the occupancy charge for this area. privately.
With regard to the public road domain, on October 28, 1997, Mr. Christian Pierret, Secretary of State for Industry, declared in the Senate: “As regards the maximum annual charge relating to the occupation of the road public domain – national, departmental and municipal roads – paid to the manager or the concessionaire of the occupied domain, the amount of 1 franc per meter, envisaged during the drafting of the decree relating to the rights of way on the public road domain and the easements envisaged by Articles L. 47 and L. 48 of the Post and Telecommunications Code had been retained to correspond, for the existing telecommunications network, to a total amount of about 150 million francs, a figure which had was also brought before Parliament during the discussion of the Telecommunications Regulation Bill in July 1996.
Taking into account an error of evaluation in the data provided by France Télécom, in 1996, on the total length of the network, a revision of the amount per meter was necessary, in March 1997, not to exceed in considerable proportions the amount originally announced by the Government.
This amount was therefore finally reduced to 150 francs per linear kilometer, making it possible, however, to reach an overall amount of more than 150 million francs – of the order of 250 million francs.
At the same time, compared to the first version of the draft decree, a provision was introduced whereby the maximum charges for the occupation of the public road domain change, on 1 January of each year, in proportion to the evolution the construction cost index – this is a standard indexation – measured in the 12 months preceding the last publication of the known index on 1 January. “. Apart from the changeover to the euro, it is always according to this logic that the right of way fee for the road public domain is fixed. As regards the non-road public domain right of way fee, the logic of the 2005 decree is the application of a more than 100-year-old principle of French administrative law: the pricing of private occupation of the public domain must reflect the benefit to that occupant. However “The convention giving access to the public domain off road cannot contain provisions relating to the commercial conditions of the exploitation. (CPCE article L. 46). The advantage provided to the operator occupying the public domain is not related to his turnover. It can therefore only reflect the cost savings enjoyed by this operator, within the limits of the ceilings set by the decree.