DoT releases draft Right of Way rules for feedback
The rules prescribe how telecom infra, including mobile towers, poles, small cells, street furniture, etc., can be installed over public and private property.
The Department of Telecommunication on Wednesday released draft right of way rules under the Telecommunications Act, 2023, for public feedback over 30 days. The Right of Way (RoW) rules prescribe how telecommunication infrastructure, including mobile towers, poles, common ducts and conduits to hold cabling, small cells, street furniture and the like, can be installed over public and private property.
These rules have been proposed under Sections 11, 12, 15 and 56 of the Telecom Act, which came into effect on June 26.
Section 11 prescribes how RoW would work for telecom network in public property while section 12 defined how RoW would work for telecom network on property not given in section 11 and includes private property. Section 15 empowers the central government to notify infrastructure projects or class of infrastructure projects — irrespective of whether they are being developed by a public entity, a private entity, or through a public private partnership — as requiring common ducts, conduits or cable corridors for installation of telecom network.
“The draft rules have built on the framework already notified under the parent act. This detailed prescription of permission and compensation especially for private property, was envisaged in the parent act. The rules for RoW on public property are almost the same as the old RoW rules,” Aprajita Rana, partner at AZB & Partners, said.
In a significant change from the Indian Telegraph Right of Way Rules that were notified under the Telegraph Act (which has been replaced by the Telecom Act), the draft RoW rules allow “any facility provider” to apply for RoW. A facility provider also includes contractors and sub-contractors. Earlier, only the licensees could apply for RoW.
“Allowing any facility provider, meaning entities who work for licensed entities, will make it administratively easier for telcos to install telecom infrastructure,” Rana said.
All applications, notifications, clarifications, permissions, objections or rejections under the draft rules will be processed through a mobile or web portal to the extent possible. This, Rana said, is the essentially the formalisation of the single window clearance that was introduced through the Gati Shakti portal. “This is a welcome move as the government will have to share all clarifications within 30 days in one go, and give reasons for rejecting your application. Having one portal will help entities and ease operations,” she said.
Private property
For private property, section 12 of the act allowed the facility provider and the owner of private property to come to a mutual agreement about RoW. The rules propose that such agreement need not be registered under the Registration Act, 1908. The rules detail the elements the agreement must have.
If the owner of the private property does not agree, the facility provider, through the portal, can make a request to the district collector or other officer designated by the central government, to determine whether such RoW is “necessary in the public interest”. Within 30 days, the request must either be rejected, or a notice must be sent to the owner of the property for a response. The owner will have 15 days to present their concerns in writing after being served. After receipt of such response, the district collector must make a decision within 60 days.
“We don’t know what kind of projects will be classified under public interest. If this is applied in an expansive manner, that may be a problem for private citizens, as a designated officer can overrule their desire to not grant permission, provided compensation is provided to the private property owner. Without such intervention, both the owner of the private property and the facility provider have negotiating power. With 5G expansion which will result in more infrastructure layouts, we don’t know how it will play out.,” Rana said.
The rules also propose that the cost of removing, relocating or altering existing telecom network will be borne by the facility provider. If the owner of the property wants to exercise any legal right over their property (such as division of property after succession), they must put in a request on the portal with details. The relevant facility provider will give details of the precautions that must be taken.
“Earlier, there was no compensation for RoW on private property. Now the regime is pretty extensive. The removal of or interference to telecom infrastructure cannot be done without first informing the telco, and detailed guidelines will apply. While this is prescriptive for the private owner, the rules provided by the rules is going to be beneficial for both. It also helps avoid unplanned interruption to installed telecom infrastructure in India.” Rana said.
Common duct and cable corridor for all facility providers
When the central government, under section 15 of the Act, notifies an infrastructure project or a class of infrastructure projects, the responsible public entity will provide an online application process to allow telecom facility providers to apply to use the common duct or conduit or cable corridor created for the project. This common duct must be made available on a non-discriminatory and open access basis. “The provision of open access for cable corridors for all facility providers would be beneficial,” Rana said.
Application timelines shortened for RoW over public property
Under the draft rules, if the public entity intends to accept the facility provider’s application for RoW for laying underground or overground telecom network on public property, it has to grant permission within 67 calendar days of receipt of application. If the application is to be rejected, the public entity must upload the rejection with reasons on the portal within 45 calendar days of receipt of application. The facility provider will have an option to respond to these reasons within 15 days. After such a response, the public entity must upload its final decision within 7 days, and give reasons in case of rejection.
If the application is rejected, the public entity must refund 80% of the fee paid under rule 6(3) by the facility provider within 15 calendar days of such rejection.
According to the draft rules, if the public entity does not grant or reject the application within the stipulated time, the permission will be deemed to have been granted, and will be automatically uploaded to the portal.
Rana said that the shorter timelines are a good move.
In case of damage to the public property due to RoW related work, both for overground and underground telecom network, the facility provider may have to pay compensation of up to the restoration rate prescribed by the central public works department for that area.
In case of overground telecom network, the public entity must also specify the compensation to be paid by the facility provider if the telecom network renders the public property unuseable for any other purpose.
If existing underground telecom network is damaged by the facility provider, the facility provider can establish a temporary overground telecom network on the public property without seeking permission from the public entity, or paying any fee or compensation to the public entity. However, it must inform the relevant public entity of the damage to the property through the portal. The facility provider must restore the underground telecom network within 60 calendar days from the date of reporting the damage to the public entity.
Installation of small cells, telecom lines
To install small cells and telecom lines on any public property, the facility provider must apply through the portal, along with details of the street furniture to be used and certificate from an authorised structural engineer attesting to the structural integrity of the street furniture.
The draft rules define a small cell as “a low powered cellular radio access node that has a coverage of distance from ten metres to two kilometres”. Street furniture is “any post or pole used for electricity, street light, traffic light, traffic sign … utility pole” available in public. Telecom infrastructure, especially 5G infrastructure, requires higher density of nodes that are mounted atop street furniture.
Applications for installation of small cells will be free. The public entity must grant permission within 60 days, or reject (with reasons) within 30 days. Like with overground and underground telecom network applications, if the public entity does not adhere to stipulated times, the permission will be considered granted.
In case of small cells, the public entity will be entitled to receive compensation from the facility provider of up to ₹300 per annum for per street street furniture in urban area and ₹150 per annum per street furniture in rural area. In case of telecom line, this compensation will be ₹100 per annum per street furniture. The public entity cannot charge an administrative fee for deployment of small cells. However, for the power consumption by small cells, the facility provider will pay as per actuals.
