Land Access for
Telecommunications
Discussion Document
ISBN 978-0-908335-28-2 (online)
© Crown Copyright
First published: June 2015
Resources Energy and Communications Branch
Ministry of Business, Innovation & Employment
PO Box 1473
Wellington 6140
New Zealand
www.mbie.govt.nz
Permission to reproduce: The copyright owner authorises reproduction of this work, in whole or in part, so
long as no charge is made for the supply of copies, and the integrity and attribution of the work as a
publication of the Ministry is not interfered with in any way.
Important notice: The opinions and proposals contained in this document are those of the Ministry of
Business, Innovation & Employment and do not reflect government policy. The Ministry does not accept any
responsibility or liability whatsoever whether in contract, tort (including negligence), equity or otherwise for
any action taken as a result of reading, or as a result of reliance placed on the Ministry because of having read,
any part, or all, of the information in this discussion document or for any error, inadequacy, deficiency, flaw in
or omission from the discussion document.
2
Ministerial foreword
New Zealand is undergoing a dynamic shift in connectivity. Like
electricity or running water, connecting to the internet at home
or on the go has quickly become a vital aspect of our lives.
Most homes, businesses or schools couldn’t do without it.
This demand has driven the rollout of the Ultra-fast Broadband
programme (UFB), which is the most ambitious infrastructure
project that New Zealand has ever embarked on.
While previous upgrades to the telecommunications
infrastructure have been implemented through small and
gradual changes to copper-based technology, the UFB
programme is a drastic step-change that will connect 80 per
cent of New Zealanders with fibre-to-the-premises, capable of
peak speeds of at least 100Mbps, by the end of 2019.
The first phase of the UFB initiative is currently ahead of schedule and uptake of this service
continues to exceed expectations. As more people take up UFB, we’re gaining a better
understanding of the nature and scale of some of the challenges that can be encountered
with a programme this ambitious.
Some network operators and consumers have been facing challenges in obtaining UFB
connections in cases where the consumer lives in an apartment building or a premises with a
shared driveway.
It’s important that these challenges are addressed to ensure that affected consumers who
wish to connect to this world-class service can do so in a timely and straightforward manner.
It’s also important to ensure that private property rights are respected.
This discussion document is a critical part in striking that balance. It outlines current issues
these affected consumers and network operators face and proposes options to address them.
I encourage your feedback on the issues and proposals raised. It will help ensure that we end
up with a package of fair and robust interventions that can be created ahead of the peak in
consumer demand for UFB.
The complete rollout of a new and exciting technology like UFB is ambitious and the
challenges raised require smart, innovative solutions.
Hon Amy Adams
Minister for Communications
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
3
Table of contents
Ministerial foreword............................................................................................................3
Table of contents .................................................................................................................4
Chapter 1: Introduction and purpose....................................................................................5
Purpose ..................................................................................................................................... 6
Scope and structure of this discussion document .................................................................... 6
Submissions process ............................................................................................................6
Sending submissions ................................................................................................................ 7
Publication of submissions ....................................................................................................... 7
Chapter 2: Background ........................................................................................................8
Existing land access rights ......................................................................................................... 9
What existing access rights do not allow for .......................................................................... 12
Proposal 1: Facilitating the deployment of fibre-to-the-premises ........................................ 13
What the industry is already doing to address these barriers ................................................ 15
Options .................................................................................................................................... 17
Safeguards and conditions (applicable to both options) ........................................................ 20
Proposal 2: Facilitating the deployment of fibre using existing utility infrastructure ............ 22
Proposal 3: Ongoing rights of access to installed fibre infrastructure ................................... 26
Proposal 4: A fair, accessible and expanded disputes resolution process ............................. 29
Questions summary ........................................................................................................... 32
Appendix 1: Submissions template..................................................................................... 34
Appendix 2: Glossary of terms ........................................................................................... 44
Appendix 3: Further information about the Multi-Unit Complex Regime ............................. 45
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
4
Chapter 1: Introduction and purpose
New Zealand has reached a turning point in its digital future. As at March 2015 the first phase
of the Ultra-Fast Broadband (UFB) initiative was 46 per cent built and over 85,000 homes and
businesses are enjoying the speed and reliability that fibre to the home can provide.
Taking into account New Zealand’s comparatively low population density and challenging
geographic terrain, the UFB programme is one of the most ambitious telecommunications
builds anywhere in the world. Rather than making use of existing copper cables as almost all of
our telecommunications developments have done to date, the UFB programme is preparing
New Zealand for the future by deploying fibre optic cables to the boundary of 80 per cent of
New Zealand properties. When a customer wants to connect to UFB, the fibre is taken from
their street and connected directly into their home or business providing a fibre optic
connection.
This is the first time there has been the mass market deployment of a new utility into homes
throughout New Zealand since electricity and copper phone lines were rolled out early last
century. It is also the first time a utility deployment of such scale and complexity has been
undertaken by private companies. It is fitting therefore that we take the time to examine
whether the legislation that determines how telecommunications infrastructure is deployed is
fit for purpose, consistent, and meets the needs of all parties.
Perhaps the most pressing issue to be considered are the rules governing how network
operators access private property in instances where land is held in common ownership, or
where the infrastructure needs to cross a third party’s land, for example, when neighbours
share a single driveway. We consider there is a need for a targeted and time limited
intervention to facilitate the efficient mass market deployment of the consumer-access part of
the UFB network. After the bulk of these connections are established the rights of network
operators to install new connections would revert to how they are currently.
Other aspects of this legislation also require consideration such as the circumstances in which
network operators should be able to access their infrastructure in order to maintain it, and
whether there is scope to make better use of existing infrastructure to extend fibre and
backhaul services to more of New Zealand.
Each of these issues requires careful consideration. While the changes proposed in this
document are balanced, and in some instances simply extend the same rights already applied
to the copper telecommunications network to UFB, they do impact on the rights that owners
have over their property. Any extended rights of access would be subject to safeguards and
conditions in order to mitigate the potential impact on property owners. We welcome
feedback on the proposed safeguards to ensure they are both workable and provide enough
protection.
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
5
Purpose
The Ministry of Business, Innovation & Employment (The Ministry) seeks written submissions
on the proposals in this document so we can better advise the Government on how the right
balance can be struck between protecting property rights on the one hand, while allowing
more New Zealanders to realise the benefits of the UFB on the other.
It is also vital that any solutions be operationally workable and have the support of industry.
The Ministry welcomes submissions from the public and those working to roll out fibre
infrastructure, as well as homeowners and those wanting UFB services, to ensure we are on
the right track.
Scope and structure of this discussion document
This discussion document outlines four primary proposals for change. These proposals relate
to:
 facilitating efficient fibre-to-the-premises connections by changing the way in which
network operators are required to seek permission to access private property in
situations such as shared driveways and apartment buildings,
 enabling better use of existing utility infrastructure to more efficiently roll out fibre
networks,
 providing more certainty about network operators’ ability to maintain fibre
infrastructure installed on private property, and
 establishing an expanded and accessible disputes resolution process to ensure that
disputes about land access for telecommunications can be resolved quickly and fairly.
Throughout this document, we ask questions to guide discussion on these proposals (you’ll
find them throughout the document, and collated at page 32), but you can share any other
ideas or concerns you might have as well.
Submissions process
You are invited to make a written submission on the issues raised in this discussion document.
The closing date for submissions is 5.00pm, Friday 24 July 2015.
Specific questions are listed at the end of relevant sections, and the full set of questions is
listed at page 32. The Ministry of Business, Innovation & Employment welcomes comment on
some or all of the questions raised, as well as broader comment on the issues.
Submissions will be considered by Ministry officials. The Ministry will then provide advice to
the Minister for Communications.
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
6
Sending submissions
You can make a submission by emailing [email protected] or by posting your
feedback to:
Land Access Project Team
ICT Policy & Programmes
Ministry of Business, Innovation & Employment
PO Box 1473
Wellington 6140
New Zealand
If you post your submission, please also send it electronically if possible (as a PDF or Microsoft
Word document).
Publication of submissions
Written submissions may be published at www.med.govt.nz or www.mbie.govt.nz. We will
consider you to have consented to publication by making a submission, unless you clearly
specify otherwise in your submissions. If sensitive material in your submission cannot be
published, please provide two versions of your submission – a full version and a publishable
version.
In any case, all information provided to the Ministry in response to this discussion document is
subject to public release under the Official Information Act 1982 (OIA). Please advise if you
have any objection to the release of any information contained in a submission, and in
particular, which part(s) you consider should be withheld, together the with reason(s) for
withholding the information. The Ministry will consider all such objections when responding to
requests for copies and information on submissions to this document under the OIA.
The Privacy Act 1993 establishes certain principles with respect to the collection, use, and
disclosure of information about individuals by various agencies including the Ministry, It
governs access by individuals to information about themselves held by agencies. Any personal
information you supply in the course of making a submission will be used by the Ministry only
in conjunction with the matters covered by the documents. Please clearly indicate in your
submission if you do not wish your name to be included in any summary of submissions that
the Ministry may publish, or in any responses to OIA requests.
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
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Chapter 2: Background
The Ultra-Fast Broadband Initiative and Extension
Under the first phase of the UFB programme, the Government has invested $1.35 billion in a
public/private partnership to build a fibre network to 75 per cent of New Zealanders by 2019.
As at March 2015 the build was 46 per cent complete with 13.8 per cent of end-users that are
able to connect to UFB having done so.
The UFB initiative requires the installation of fibre-optic cables, connecting directly to
customer premises. Chorus along with three Local Fibre Companies (LFCs) – Northpower, WEL
Networks, and Enable, will continue to roll-out the UFB distribution network until 2019 and
beyond. These network operators1 will have an ongoing role in connecting premises to fibre
throughout the lifespan of this infrastructure.
In March 2015 the Government confirmed its commitment to extended coverage of the UFB
initiative from 75 per cent to 80 per cent of the population. The additional funding of between
$152 and $210 million is proposed to come from the Future Investment Fund. A list of
additional towns to receive fibre-to-the-premises, and the order of rollout, will be determined
following a competitive bid process.
The wider long term benefits to end-users of the first phase of the UFB initiative alone were
estimated to be approximately $32.8 billion over 20 years.2 To arrive at this figure, AlcatelLucent considered the application of fast broadband across four sectors; healthcare,
education, business, and dairy, and estimated the value of increased productivity enabled by
applications such as cloud computing, and new revenue from online market places.
To date the rollout has proceeded ahead of schedule and uptake is beginning to exceed
expectations. While the overall programme has been proceeding successfully, network
operators and consumers have told us about challenges they have encountered with the
deployment of the consumer fibre network (the connection from the street to the premises).
In particular, we have heard about long wait times for individuals or businesses wanting
connections that need to be installed down a shared driveway or within an apartment
building. The proposals in this paper aim to streamline the deployment of the consumer fibre
network to ensure that the success of the initiative continues as uptake increases.
1
Network operators are telecommunications service providers who have, pursuant to section 103 of the
Telecommunications Act 2001, successfully applied to be declared as such by the Minister for
Communications. Chorus and the three LFCs are all network operators.
2
Alcatel
Lucent
(2012)
‘Building
the
Benefits
of
Broadband’,
URL
<http://www.tmcnet.com/tmc/whitepapers/documents/whitepapers/2013/6687-building-benefitsbroadband-how-new-zealand-increase-social.pdf>
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
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Uptake forecasts
The Ministry expects that demand for UFB will increase significantly over the next 12 months
and will exceed original predictions. Over the last few months the number of UFB orders
received per month has increased relatively sharply. February and March 2015 were record
months for UFB orders with over 10,000 and 12,000 orders received respectively during those
months.
Similarly, the International Data Corporation (IDC) has also examined UFB in New Zealand and
has estimated that uptake is likely to reach approximately 25 per cent by June 2016 and 31.5
per cent by June 2017. IDC also estimates that by 2017 the annual number of new UFB
connections will be approximately 4.9 times higher than it is currently. While the forecasted
increase is promising, any significant increase in the rate of uptake has the potential to result
in longer timeframes to connect customer premises and have an impact on the customer’s
connection experience.
Existing land access rights
Access to private land for network operators to install and maintain telecommunications
networks is governed by a range of instruments and agreements.
The Telecommunications Act 2001
The Telecommunications Act 2001 provides network operators with a statutory right of entry
to private land for the purpose of gaining access to any existing lines3 owned by the operator.
This means that in instances where telecommunications facilities were installed prior to April
1989, the consent of a land owner is not required when the network operator needs to repair
or maintain their facilities. Due to some uncertainty as to the scope of the existing lines
provision, the provision has not, to our knowledge, been relied on in the context of deploying
UFB.
Where these facilities have been installed after 1989, access to private land to install
telecommunications facilities such as UFB lead-ins, is primarily gained by seeking the express
permission of the relevant land owner/s either by the granting of an easement or by contract
or licence.
Easements
An easement is a legal right that allows a third party (including neighbouring owners) to access
or pass over another person’s private property. Examples include the right to use a shared
driveway or a right to undertake specific works (e.g. to lay pipes for water or sewage).
3
Existing lines is defined in Section 5 of the Telecommunications Act 2001 as: existing lines—
(a)
means any lines constructed by Telecom or any of its former subsidiaries before 1 April 1989; and
(b)
includes any lines that were wholly or partly in existence, or for which work on the construction,
erection, or laying commenced, before 1 April 1989.
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
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Easements are registered interests that are recorded against the land (they are specified on
the certificate of title), binding all future owners of the land.
On the granting of an easement, the rights and obligations of each party subject to the
easement are set out in the easement instrument. A utility operator that has the legal right of
access under the easement can undertake works in accordance with the purpose set out in the
easement instrument.
A large number of easements were created for telecommunications, electrical and sewer
networks when these services were first introduced. These easements still exist today and
utility companies use them to access their infrastructure that crosses either above or below
private land.
However, reliance on easements alone for the purposes of installing UFB connections has
proved problematic because:
There is insufficient coverage by easements - Where there is no existing easement or
where the terms of an existing easement make it unsuitable for use, a new easement
must be created. In the context of a mass market roll out like UFB, it is costly and
impractical to create new easements for every new lead-in.
Restrictive terms in easements - Where an easement does exist, the terms or language
used may not allow for UFB installation. Generally, easements for utilities are limited by
purpose, for example an easement for electricity often will not be able to be used for
telecommunications purposes. Furthermore, telecommunications easements may limit
access to a particular provider or technology which can mean that network operators may
not be able to use this right of access.
Negotiated access agreements
It is our understanding that negotiated access agreements are the most common way in which
network operators are obtaining permission for land access to install UFB lead-ins. A
negotiated access agreement is a contract or licence negotiated between the network
operator and each of the relevant property owner/s. Network operators have developed
standardised forms which seek permission from the relevant property owners to access land
for the purpose of installing UFB connections.
Usually a customer wanting a UFB connection also owns the land a network operator must
access to install the connection. In cases like this access arrangements are straight-forward and
network operators have generally used their “End User Terms” (a contract) to gain permission
to access the property.
More complex situations arise where UFB installation involves a shared access way or a
building which has multiple owners (see page 13 for an illustration). In these situations
negotiated access agreements can be problematic as the network operator must seek
permission from third parties (such as neighbours) in order to access the commonly owned
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
10
land or building to install UFB. This most commonly arises in Multi-Unit Complexes (MUCs)
such as apartment buildings or where a house has a shared driveway (right-of-way).
In order to negotiate an access agreement to install fibre lead-ins, network operators must
ascertain how the relevant land is owned, who the relevant owners are, and how to contact
them in order to seek the necessary permission. In some cases that can be straightforward,
such as when there is only one owner with freehold title to the land. But in others, where
there are multiple owners of the particular piece of land, it can be difficult for network
operators to get in contact with the relevant owners and get written permission from each of
them.
Negotiated access agreements are only binding on the person who grants permission and the
network operator. They do not “travel with the land” in the same way that easements do. This
means that if one of the parties to the access agreement sells their property, the new owner
may not be bound by the agreement. This has the potential to cause issues for network
operators who will need to access their infrastructure on the private land again in future for
maintenance purposes. As a result, negotiated access agreements are not a long-term
solution.
District Court Orders
Network operators have the option of applying to the District Court for a Court Order to access
land “for the purpose of constructing, erecting, laying, or maintaining any line.”4 However,
they must first have taken all reasonable steps to negotiate entry and given the owner 10
working days’ notice of their intent to apply to the District Court.5 This is a relatively expensive
and time consuming process. To our knowledge, this section has not been used to gain access
to private property for the purpose of installing UFB connections or infrastructure.
The Multi-Unit Complex framework
The 2011 amendments to the Telecommunications Act 2001 (the Act) included a new
framework to allow network operators to access Multi-Unit Complexes (MUCs)6 in instances
where all other options have been exhausted. In order to exercise this right, a network
operator must comply with the pre-conditions outlined in section 155D pursuant to which
service providers must:




be bound by the Code (the MUCs Code) and be a member of the consumer complaints
scheme (further information about this is included in Appendix 3),
have taken all reasonable steps to negotiate entry,
have served a preliminary notice on each owner of the MUC,
have served a second notice on each owner of the MUC, and
4
Telecommunications Act 2001, S 120.
Telecommunications Act 2001, Sections 121, and 120.
6
Telecommunications Act 2001, Part 4, Subpart 3 – Access to multi-unit complexes to which fibre-tothe-premises is to be deployed.
5
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
11

if any of the MUC owners have chosen to opt-out by actively refusing consent, the
service provider must obtain an access order from the District Court in respect of
those owners.
It is our understanding that network operators have so far not made use of the MUCs access
regime. This is in part because in order to gain access under this regime, they must already
have made attempts to negotiate access with the relevant land owner/s (as set out above).
Implementing the MUCs process after attempting to negotiate access would mean further
delay and greater cost from the perspective of the network operator.
What existing access rights do not allow for
The current framework governing land access for the purpose of installing UFB lead-ins was
developed in the context of the legacy copper telecommunications network. In the past, the
deployment of a new network infrastructure such as UFB has been carried out by the
government. The partnership model of the UFB initiative is a relatively new model, one that
did not exist when current land access arrangements were put in place. The current framework
is not built to accommodate a situation where private companies are engaged in a nation-wide
mass market network deployment.
Currently, network operators are relying heavily on individual negotiated access agreements in
order to install fibre lead-ins for UFB. They do not consider that the MUCs framework and the
Telecommunications Act 2001 provide sufficient certainty about rights of access where
permission from third parties is required.
Although easements do provide more certainty and ongoing access rights, they do not appear
to be a practical mechanism to support land access for network operators in a mass market
deployment context because of the time and cost involved.
Section A Questions on the existing framework:
1. Which elements of the existing land access framework for telecommunications do you
think are working well and should not be changed? Why?
2. If you have encountered issues with the application of the existing rules for
telecommunications land access, what are the specific aspects of the rules that you
have found to be problematic and why?
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
12
Proposal 1: Facilitating the deployment of fibre-to-the-premises
This section is about installing fibre from the street to homes and businesses which often
requires network operators to enter private land to carry out the FTTP installation. This is
straight forward where the person seeking the connection also owns the land the network
operators need to access. This section is concerned with situations where network operators
need permission to access private land from someone other than the person seeking the
connection (hereafter referred to as the affected property owner).7
In this section we outline proposals for a targeted, restricted and time limited solution to
facilitate fibre installations in common property such as shared driveways or apartment
buildings. The existing MUC framework will be amended to be consistent with any agreed
changes arising from this consultation process.
As outlined in the previous section, to gain entry to private land for the purpose of installing
fibre, network operators require written permission from all affected property owners. If even
one affected property owner does not respond to a request for permission, the installation
cannot go ahead.
7
An affected property owner is a person, other than someone who has requested a connection, who
has an ownership interest in the land which will be affected by a proposed fibre installation and has a
legal right to make decisions in respect of that property.
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
13
In the diagram above illustrating connection scenarios, if you ordered a UFB connection it
would be installed along the shared driveway. For this kind of installation the network
operator must obtain written permission from all affected property owners (e.g. your
neighbour/s along a shared driveway in this case). If one of the affected property owners does
not respond to a request for permission, then the installation cannot go ahead and you cannot
get a UFB connection.
Network operators claim that a substantial number of UFB orders have been delayed or
cancelled, not because neighbours do not approve of a fibre connection, but because they
have either misplaced the request for permission or not found the time to respond. The more
properties that share a driveway the greater the challenge in obtaining permission from
everyone affected. On the whole, this is creating a significant barrier to UFB installations.
The size and nature of challenges with FTTP installation
Based on data collated over the later part of 2014, the telecommunications industry has
assessed that around 15 per cent of UFB orders received during that period required some
form of permission for access to private land from relevant land owners. Furthermore, industry
tells us that of the orders requiring permission for access, around a third are cancelled due to
difficulties obtaining permission from all affected property owners. The effect of this is that
somewhere between 3-6 per cent of all requests for UFB are failing due to problems in
obtaining permission to access private property such as shared driveways. This equates to
roughly 60,000 households8 that could be prevented from enjoying the reliability and speed
that UFB can offer.
These estimates are conservative and likely downplay the true size of the problem for a couple
of reasons. Firstly, the way that industry collects data is such that only the first in a group of
orders requiring permission for access is recorded as requiring permission. This means where
15 units in a complex cannot get UFB because one or more units do not respond to a request
for access, this is recorded as only one failed order. Secondly, it is also difficult to quantify the
orders that are not placed because people think it will be difficult or complicated based on the
problems others may have encountered getting a connection.
While some UFB order cancellations are due to reasons that cannot be addressed through
legislation (such as a refusal to pay for contributions towards a commercial non-standard
installation), in many instances these orders are failing simply because an affected property
owner, such as a neighbour, did not respond to a request for permission to access their
property.
As well as preventing some connections altogether, the process of gaining permission for
access can add significantly to the time taken to connect end-users to UFB. In most cases
(approximately 65 per cent) permission to access private land is received within 20 working
days. However, where permission is not received within this timeframe the delay in receiving a
response adds significantly to the average time take to connect a property. The most recent
8
If 4.5 per cent of orders requiring consent fail, and assuming 100 per cent uptake.
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
14
monthly reporting data from Crown Fibre Holdings (CFH) showed that orders not requiring
consent take on average 34 calendar days to connect, whereas the average time to connect
orders requiring permission for access was over double that (March 2015).
Delays related to land access are causing UFB service orders to be cancelled to the confusion
and frustration of end-users. Furthermore, inefficiencies associated with gaining these
consents, and failed consents, are driving significant and avoidable costs to fibre companies
and retail service providers. The UFB programme is now at the point where uptake is likely to
increase significantly over a relatively short period of time. If these issues are not addressed in
the short term, we expect they will be exacerbated with an increase in demand.
Section B Questions on the size and nature of the challenges with FTTP installation:
3. If you or your business is involved in the installation of fibre, is your view of barriers to
FTTP connections aligned with what we have outlined in the above section?
4. Are you aware of any problems relating to the installation of FTTP that are not outlined
in this section?
5. In your view, are problems with the current requirements for the installation of FTTP
significant enough to warrant legislative change? Please provide reasons.
What the industry is already doing to address these barriers
Difficulties with installing fibre-to-the-premises connections have emerged in almost every
Next Generation Network (NGN) rollout around the world. The experience of other rollouts
demonstrates that no single approach can completely resolve the problem. It will require
coordinated efforts on the part of Government and industry to smooth the path for UFB
uptake in New Zealand and improve the experience of end-users wanting fibre connections. In
this document we are concerned largely with the role that government can play in getting the
regulatory settings right to ensure an appropriate balance between the rights of land owners
and those wanting access to modern telecommunications services.
Nonetheless, the Ministry would like to take this opportunity to highlight some of the
complementary measures required from industry to address these issues, some of which are
already being worked through.
Availability of low impact installation techniques – Some network operators have
developed the capability to undertake installations that have a lower impact on
peoples’ land, such as surface mounted installations (where fibre is deployed in a
pipe along a fence for example). Reducing the impact on land should also reduce the
instances where affected property owners will object to an installation.
Standardising and streamlining processes – The industry has introduced a ‘Best
Practice Guide to Consenting’ which is designed to standardise the approach to
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
15
gaining permission for entry to private property across the country. This will provide
more certainty about the process for retail service providers who will then be able to
manage the installation and communicate expectations more effectively with their
customers – the end-users.
Consumer Information - Increasingly there is better information available to
consumers about what is involved in getting a UFB connection, particularly in relation
to obtaining permission for network operators to access shared or private property.
Proactive Consenting – Some network operators are gaining permission to access
private property in certain areas before an order for a connection is placed for the
relevant address. This means that they could be ready to go ahead with the
installation when someone places an order reducing delays and frustration for endusers. This approach works particularly well for apartment buildings and business
parks.
The industry is already implementing or developing many of these measures. However, more
effort to implement such measures and streamline processes will be required to fully optimise
the installation experience across the UFB initiative, in addition to the amendments canvassed
below.
Where you can help shape government policy
It is clear that there are inefficiencies in the current framework for land access which
government can address without adversely affecting the ability of property owners to enjoy
their land. Specifically, government can adapt the current framework designed for legacy
infrastructure to appropriately meet the needs of a new-mass market infrastructure rollout. In
doing so, government would look to achieve the following outcomes:



people are not unreasonably prevented from gaining a UFB connection if they want
one,
connection processes are optimal and efficient, especially where permission from third
parties is required, and
the rights of property owners are not unreasonably affected.
Proposed parameters of the proposal
The proposed amendments to land access for telecommunications are intended to be available
for the deployment of fibre only. However, additional technologies will be able to be added
later by regulation if required.
Any new access rights afforded to network operators may be time-limited (through the
application of a sunset clause). In the case of the UFB network we expect high volumes of enduser connections continuing beyond the 2019 network completion date and consider that a
sunset date of 2025 would provide adequate time for the consumer network to be sufficiently
well established after which it is anticipated that there will be less need for an expedited
installation process. At this point, any new powers established as a result of this proposal for
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
16
network operators to install new connections would lapse and revert back to those equivalent
to other established utilities. The sunset clause is intended to apply to this proposal only.
Options
There are two main options for implementing an amendment to the current framework. The
first, a deemed consent model, provides a broad right of access with a corresponding opt-out
mechanism. This option proposes extending an amended version of the MUCs framework to a
broader set of situations requiring permission for land access such as shared driveways. The
second option, a low impact facilities model, provides an automatic right of access for defined
low impact installation activities with more restricted rules of access for higher impact
installation activities.
It is possible to implement either or a combination of these options. We are seeking
submissions on which aspects of these options you consider would work best and why.
Option One: Deemed Consent
The primary feature of a Deemed Consent framework would be to amend the process of third
party permission to enter land for the purpose of installing fibre from one requiring all parties
to actively opt-in to one that allows the installation to go ahead unless a party actively optsout.
Deemed consent is the core part of the existing process for access to MUCs (further details in
Appendix 3). This option would amend the MUCs framework and extend it to cover shared
driveways and other instances where permission for access to land is required from someone
other than the person requesting a connection. Relative to the existing MUCs framework, the
proposed process would aim to shorten timeframes to increase efficiency and to provide more
certainty.
Process:
1.
Affected property owners9 would be sent notice/s of a network operator’s intention to
enter the land to install a UFB connection subject to meeting certain conditions
(discussed below).
2.
The notice would inform the affected property owners that they have a specified
period in which they can raise an objection to installation taking place.
How long should the notice period be? Please provide reasons.
9
An affected property owner is a person who has an ownership interest in the land which will be
affected by a proposed fibre installation and has a legal right to make decisions in respect of that
property.
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
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3.
If the affected property owners actively give permission in response to the notice, the
installation can go ahead without delay.
4.
If no response is received and provided certain conditions (such as the installation
being in an existing access way) were met, network operators would then have the
right of access to install the lead-in (those that had received the notices would be
“deemed” to have consented).
5.
If an affected property owner did object the work would be put on hold until concerns
can be worked though. If these issues cannot be resolved the matter could be
addressed through a dispute resolution process which is discussed further in proposal
four (page 29).
Should there be a time limit to this dispute resolution process? If
so, how long do you consider is reasonable and why?
Shifting the requirement from one where all parties must actively consent to an installation to
one whereby consent is assumed but parties have a simple way of opting out would reduce
the number of end-users prevented from connecting to UFB while still respecting landowners’
right to autonomy over their property. This process also provides a clear timeframe which
should address the issue of orders that remain open for long periods of time awaiting
responses from affected property owners.
Option Two: Low Impact Telecommunications Facilities
A low impact facilities (LIF) framework provides an automatic right to install infrastructure
where the impact on land/affected property owners is very low based on a strict definition.
This option is modelled on the approach to fibre deployment taken in Australia. While there
are substantial differences in the policy and legal context between the two countries, some
elements of the Australian low impact facilities regime could provide a useful model for New
Zealand.
Process for low impact installations:
1.
Affected property owners are sent a notice from a network operator intending to
complete a UFB installation.
How far in advance of the installation activity taking place
should network operators be required to send the notice and
why?
2.
The notice will state when the activity will take place and whether the activity meets
the criteria for “low impact” or not.
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
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3.
If the proposed installation activity is low impact then the installation can
automatically go ahead on the proposed date.
4.
If, upon entering the land to complete the installation, the network operator finds that
they cannot undertake the connection using a low impact method (e.g. the existing
duct is blocked), the installation will not proceed and a new notice will be sent to
affected property owners (following the process below).
Process for high impact installations
5.
Higher impact installation activities would require two notice periods in order to
minimise the risk that an affected owner could miss the notice, and to give them more
time to respond.
How long should the second notice period for higher impact
installations be, and why?
6.
Affected owners will also have the option to object on a limited number of grounds to
higher impact installation activities.
In what circumstances do you consider that affected owners
should be able to object to installation activities?
7.
Objections would be resolved through dispute resolution (discussed in proposal four at
page 29).
Installation activities that are considered to be “low impact” would be specified in detail in
regulation or other instrument. Some examples of installation activities or circumstances that
could be considered low impact are:





installation in an existing access corridor e.g. shared driveway, vehicular or pedestrian
access way, where the installation activity is also low impact,
use of an existing pipe or duct,
aerial installation along the same route as an existing telecommunications or
electricity connection,
surface-mounted installation, and
vehicle access blocked for 3 hours or less etc.
What should the Ministry take into account when setting the
criteria for “low impact”? Please provide reasons.
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
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This model would be more complex to implement than a deemed consent model as outlined in
option one, but could significantly increase the efficiency of installations requiring access
permission.
Safeguards and conditions (applicable to both options)
The following safeguards and conditions will form a key part of any amendment that is
progressed.
Identifying and contacting affected property owners – affected property owners are
identified and contacted using information from the ratepayer database maintained by local
authorities. Network operators would be required to send a notice of their intention to enter
land for the purpose of installing a connection to the registered address of each affected
property owner.
Is this the best way to ensure that property owners receive this
information? Are there other or additional measures that could be
put in place to ensure the information is received?
Notification periods and requirements – network operators would be required to give
affected property owners a specific period of notice before entering the property. This could
take a number of forms. For example, the current MUCs process requires two notices of 20
working days each. The length of the notice period needs to be balanced between giving
sufficient notice to affected property owners and efficiency. The notice period could be
graduated in relation to the impact of the installation activity under a LIF model.
Use of existing access corridors – network operators will only be able to install connections in
existing access corridors such as vehicular access ways. The amended access rights are not to
be used to allow for providers to enter private space on a person’s property such as their
garden. It is our understanding that this is consistent with current practice.
Opt out or objection processes – network operators will be required to provide clear and
accessible processes for affected property owners to opt-out or object to an installation
activity where this is appropriate. It is expected that network operators will make reasonable
efforts to address the concerns of the party opting out. If an agreement cannot be reached
with a party who chooses to opt-out then the matter will go to dispute resolution (discussed
further at page 29).
Responsibility for reinstatement – Network operators making use of the proposed right of
access would be responsible for reinstating any damage to property on a like-for-like basis to
the satisfaction of the property owner. No cost for this reinstatement is to fall on the property
owner.
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Impact on property owners - These options will have some impact on property owners in
reducing the say they have over what happens on their property or property they have an
ownership interest in. The Ministry wants to ensure that this impact is as small as possible
while still achieving increased efficiency for FTTP installations. We welcome submissions from
property owners who may be affected by this proposal about how it could be improved.
Section C Questions on proposal 1 - options to facilitate FTTP connections:
6. Would you prefer the deemed consent approach or the low impact facilities approach
or some combination of the two? Please state your reasons for your preference.
7. Would you support a move away from requiring written consent from affected
property owners to an approach that assumed consent is implied but provides a
mechanism to opt-out?
8. If the requirement for written permission for access is changed, what conditions or
safeguards should be applied?
9. In what circumstances should an affected property owner be allowed to object to a
network operator accessing land they share with a neighbour to install a connection?
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
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Proposal 2: Facilitating the deployment of fibre using
existing utility infrastructure
The Ministry is considering whether to create a new statutory right of access which would
allow for fibre to be deployed with existing utility infrastructure (telephone and electricity lines
in the first instance). This would allow for fibre lines to be deployed alongside, for example,
electricity lines. It would not allow for any new contact points with the ground such as poles or
any digging activity.
This proposal could grant telecommunications network operators new statutory access rights
to private land subject to conditions and limitations similar to those canvassed in the above
chapters. This proposal would not provide for telecommunications network operators to
access utilities infrastructure (such as electricity poles) that they do not already own (network
operators can enter into commercial negotiations for such access).
The diagram below illustrates the ownership of the various assets involved in the deployment
of fibre using existing utilities. The proposal would provide a new right to B to enter A’s land
for the purpose of deploying fibre for telecommunications purposes. Currently B only has the
right to enter A’s land for electricity purposes. Under the proposed changes B would be able to
enter A’s land, subject to notifying A, to deploy fibre lines too. Once installed B would also be
able to enter the property to maintain or repair the fibre, subject to conditions discussed
below.
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The proposed right of access would be available only in limited circumstances and subject to
certain safeguards such as:

The impact on land owners must be negligible. There should be negligible impact on
the landowner’s experience/right to use and enjoy their land.10

The new infrastructure permitted to be deployed by this access right will be limited to
defined low impact lines and small associated fixtures. It will not allow for any new
support infrastructure or any new points of contact with the ground such as poles. It
would also not permit any digging activity.

The right of access will be limited to the existing utility asset owner. The asset owner
may then be able to license rights to use the fibre to network operators.

The network operator would be responsible for remediating any damage to property
or land arising out of the fibre deployment on existing utilities infrastructure. This
could be dealt with through dispute resolution.
The Ministry acknowledges that this proposal would lead to instances where infrastructure
owners may be subject to different access rules (contained either in legislation or easements)
for different utilities deployed alongside one another. If the proposal is taken forward the
Ministry will take this into account and aim to minimise these differences in designing the
policy. We welcome submissions on this point, particularly in relation to provisions or
safeguards in existing legislation which you consider work well and should be applied to the
proposed new right of access.
Benefits
The benefit of this proposal is that it sufficiently improves the business case for investing in the
extension of fibre networks. The proposed amendment would allow for network operators to
improve regional backhaul capacity by making it more efficient for them to extend fibre
networks. This means they would then be able to more easily feed cabinets and wireless
towers to further increase the availability and quality of broadband and mobile services
outside of the current UFB footprint. Network operators may also be able to make better use
of existing assets to extend the reach of their fibre networks into communities that would not
otherwise receive this service.
10
Both the Telecommunications Act 2001 and the Electricity Act 1992 require that activity taking place
to maintain or upgrade existing lines must not “injuriously affect” the land. This means that
infrastructure owners must not cause any damage to land or property which results in a permanent
reduction in value, otherwise they may be liable to pay just compensation. We propose to apply the
same injurious affection standard to activities carried out using this proposed right of access in order to
protect affected property.
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Current situation
Currently land access regimes for utilities create a couple of barriers to the deployment of fibre
in conjunction with existing utilities. For example, the Electricity Act 1992 allows electricity
network operators access to private land for the maintenance and upgrading of existing works.
There are two relevant limitations which prevent the deployment of fibre in or on existing
works under this Act. Firstly, the Act limits access for electricity purposes only.11 Secondly,
access to land is limited under the Act to “existing lines” defined in the Electricity Act as lines
installed prior to 1993.
Where electricity lines have been installed after 1993, network operators have had to rely on
easements or negotiated agreements to gain access to private land. These easements often
limit access to electricity purposes also.
These restrictions affect access by requiring network operators to negotiate individually with
each land owner whose property the relevant electricity lines pass through or over in order to
deploy fibre for telecommunications purposes alongside electricity lines.
Some electricity providers already have fibre deployed with their electricity assets for the
purpose of remote monitoring of their electricity network. However, the current access regime
limits the use of this fibre to electricity proposes only. This prohibits providers from making
best use of the infrastructure by, for example, leasing spare capacity to telecommunications
providers.
Similar restrictions exist in legislation governing other utilities such as gas and water, although
at this stage the Ministry is not aware of network operators wishing to deploy
telecommunications facilities with these utilities. If you are interested in deploying fibre with
existing utility infrastructure other than telecommunications or electricity infrastructure we
would welcome a submission from you.
Section D Questions on proposal 2 – allowing for deployment using existing utilities:
10. If you are a network operator who also owns or can arrange access to electricity
infrastructure, how would you make use of a right to deploy fibre alongside these
existing utilities? Please include as much detail as possible including whether you
intend to provide backhaul and/or customer connections and where you would use
such a right of access to deploy these services.
11. Do you consider that the safeguards and conditions outlined above strike the right
balance between enabling efficient deployment and protecting the rights of property
owners? If not, please explain why.
11
This means that while electricity network operators have been able to deploy fibre for the purpose of
remote monitoring of electricity networks, they cannot deploy fibre for telecommunications purposes,
even though the impact on land owners seems to be the same.
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12. If you, or someone you represent, have land that is currently crossed by electricity
infrastructure, under what situations would you support the co-location of fibre on this
existing infrastructure?
13. Any right to deploy and maintain fibre with existing utilities needs to have a low impact
for those affected. What matters should the Ministry take into account when setting
the terms and conditions for access to private land to minimise the impact on owners?
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
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Proposal 3: Ongoing rights of access to installed fibre
infrastructure
This chapter considers the rights of access that network operators should have to revisit their
infrastructure on private land once it has been installed. The proposal in this chapter is to
create an ongoing right of access for network operators in respect of installed infrastructure so
they can maintain and upgrade it. This would apply to external infrastructure on private land
only, or in the case of MUCs, to infrastructure in common areas only. It would not extend to
infrastructure inside someone’s house such as the internal wiring.
Why is ongoing access required?
A network operator needs to be able to re-enter land where their facilities are installed in
order to inspect, maintain, replace and upgrade the network. The scope of these rights needs
to be broad enough to allow them to make necessary repairs to assets in a timely way.
Telecommunications connections are different to other utility connections in that network
operators own the lead-in (the connection between the street and the premises). Lead-in
infrastructure for other utilities is generally owned by the owner of the premises. In contrast,
Chorus and the LFCs deploying UFB networks are bearing the cost of these connections
because they will generate a financial return for them over time. However, if a network
operator’s right to ongoing access are uncertain, costly and cumbersome then this reduces the
commercial incentives to invest in connecting premises where the installation and access may
be complex.
How can network operators currently obtain ongoing access to facilities?
Network operators have a right of entry onto land to maintain existing copper lines, but no
equivalent rights of access to maintain fibre. Rather, fibre network operators rely on either
easements or licences to gain this access. The Ministry does not consider that these existing
mechanisms provide sufficient certainty with regard to access to installed infrastructure for
the following reasons:

The rights of entry under the Telecommunications Act 2001 apply to legacy copper
lines (installed prior to 1 April 1989) and do not apply to fibre network operators.

It is not common practice to have easements for fibre infrastructure, and existing
telecommunications easements are generally restricted either by provider or
technology so that they are not suitable to provide rights for network operators to
enter land to access fibre infrastructure.

It is impractical to require fibre network operators to secure new easements for all
fibre lead-ins as this would be enormously costly and time consuming.
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
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
Licences granted by property owners are currently the primary mechanism by which
fibre network operators are gaining access and permission to have their infrastructure
on private property. However, such agreements are not registered against land titles.
This means that when premises are sold there is no obligation on the next property
owner to allow a network operator access to any installed fibre network facilities.
Licence agreements, through which a property owner consents to land access, are
therefore not a suitable way of providing for continued access after the signatory
property owner sells the affected land.
The current situation is not sustainable from a public interest perspective if New Zealanders
are to derive maximum benefit from fast broadband technologies.
Proposal to extend rights of access for “existing lines” to fibre infrastructure on
private property
In order to enable ongoing access to installed fibre infrastructure we propose to amend the
Telecommunications Act 2001 to extend the rights of access currently provided for legacy
copper lines.12
The rights and conditions of entry provided for under this proposed amendment would need
to be harmonised with any amendments made as a result of proposal one in this document
regarding rights of entry for FTTP deployment.
The proposed amendment would have the benefit of providing certainty by binding future land
owners. This would provide greater certainty to network operators. We think network
operators could then feel more confident investing in more complex installations in the
knowledge that once installed, they will not be required to re-negotiate entry with every new
owner or be faced with stranded assets if they cannot reach an agreement.
On the other hand, this proposal would have some impact on land owners, in particular those
who may buy a property without knowledge of the rights of access that a network operator
has to the infrastructure on their land. While this kind of impact is common to a range of
provisions and restrictions contained in legislation, the Ministry is considering whether some
form of notice might be appropriate, for example, including the information in the Land
Information Memorandum (LIM) maintained by local councils.
Do you think that prospective property owners should be
alerted in some way to an ongoing right of access to installed
infrastructure? If so, how do you think this should be done?
12
Currently section 125 the Telecommunications Act 2001 provides an ongoing right of access to a
limited set of “existing” lines and works, as defined in section 5 of the Act, and is subject to conditions of
entry set out in section 126.
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
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Section E Questions on proposal 3 – ongoing rights of access:
14. Should the rights network operators have to access and maintain fibre networks be
similar to rights they have to access and maintain legacy copper telecommunications
networks? Please provide reasons for your answer.
15. What factors should the Ministry take into account when setting conditions for access
to installed infrastructure in order to minimise the impact on property owners and
provide for an efficient access process in this context?
16. If you are a provider of fibre services, how would the implementation of this proposal
impact on your decisions to follow through with complex or otherwise problematic
installations?
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
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Proposal 4: A fair, accessible and expanded disputes
resolution process
This chapter considers how disputes regarding land access for telecommunications are
resolved. Disputes resolution is important because effective implementation of the proposals
canvassed in this paper depends on a mechanism to quickly, easily and fairly resolve
disagreements that may arise as a result. Providing for an accessible, less formal, and time
bound process will ensure that any changes are supported by a fair and efficient backstop if
there is disagreement about the application of the rules or if safeguards and conditions are not
followed.
Existing dispute resolution grounds and avenues
The resolution of disputes about access to land for telecommunications purposes is provided
for by the Telecommunications Act 2001. Currently the primary mechanism for resolving these
disputes is the District Court. Network operators may apply to the Court for an access order if
they have been unsuccessful in negotiating access to private property.
To our knowledge, no such cases have been taken by a network operator. Network operators
have told us that this is due to the time consuming and expensive nature of the process, and
also due to the reputational risk involved.
The current disputes regime is designed for an existing network and is not accessible or
efficient enough to support the mass market deployment of a new network where thousands
of new connections are made each month. Network operators have been unwilling to pursue
this option, as applying to the District Court for an access order is a time consuming and
expensive process. This effectively means that a UFB order needs to be abandoned because
there is no accessible means for resolving disputes arising where a neighbour doesn’t respond
to a request for entry permission, or denies access purely because they don’t like their
neighbour. We think this is an unfair and unsatisfactory outcome for the person denied a
connection.
There is also an alternative dispute resolution mechanism for a limited set of cases involving
fibre installations in Multi-Unit Complexes (MUCs) e.g. apartment buildings. This is a privately
run complaints scheme funded directly by industry through the Telecommunications Forum
(TCF). However, to our knowledge, no disputes have been taken through this scheme to date.
The limitation of this service is that it only has jurisdiction to consider compliance with the
MUCs Code (a regulated code). Technically it could also consider whether it was reasonable for
a property owner to deny access – but only if the parties agree to allow them to consider it.
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
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Objectives for dispute resolution
In looking to change the disputes resolution framework and expand the grounds for resolution,
we propose the following objectives be considered:

Design of pre-dispute processes that are fair and transparent, in order to minimise the
number of disputes related to land access for telecommunications that require the
involvement of an independent third party.

The service should be efficient and more accessible than the status quo in order for it
to have the widest possible application.

Network operators should be required to adhere to the safeguards and conditions of
any expanded rights of access, and to provide an accessible service for land owners to
resolve complaints concerning their actions.
Expanding the scope of dispute resolution
If the proposals canvassed in this paper are taken forward then matters which may require
resolving are as follows:
•
•
•
•
Whether an individual’s decision to decline a request from a network operator for
access to their property is reasonable or valid, according to a specific set of criteria
(please refer back to proposal one if you want to provide feedback on criteria for
declining access).
Whether the correct process was followed in relation to accessing the land, and
potentially remedies or penalties where it was not.
Compensation for damage to land or unreasonable inconvenience caused as a result of
the use of rights of access.
Disagreements between landlords and tenants about whether fibre services can be
installed and provided, including conditions of installation.
The Ministry is interested to hear whether there are further matters that you consider should
be included in the expanded scope for dispute resolution, or anything that you consider should
be explicitly out of scope.
Proposed approach to disputes
In order to meet the Ministry’s objectives for a quick and accessible dispute resolution process
we consider that an appropriate approach is a less formal format, at least in the first instance.
Where possible, it is desirable that network providers and property owners negotiate an
agreement directly without the need for third party assistance or intervention. Where that is
not possible, mediation followed by adjudication is the preferred approach.
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This preferred approach along with the following factors will be taken into account when
selecting an appropriate body to hear telecommunications land access disputes:




Efficiency – The time taken to resolve or obtain a decision on a land access dispute will
be subject to a time limit unless the parties agree to a longer timeframe.
Accessibility – Fees should be low and preferably free for individuals. Legal
representation should not be required if this can be balanced with the need to ensure
equality between the parties.
Independence – from Industry and government.
Fairness – the outcomes delivered through the service are seen as fair by all parties
involved.
Some options for dispute resolution bodies that are currently under consideration include:
 Extending the existing MUCs dispute resolution service.
 Extending the jurisdiction of the Disputes Tribunals.
 Outsourcing the function to a commercial provider.
Further work to identify an appropriate disputes resolution body will be undertaken as the
Ministry receives feedback through the consultation process and a preferred policy approach
emerges.
Section F Questions on proposal 4 – a fair, accessible and expanded disputes
resolution process:
17. Do you support the stated objectives for dispute resolution set out in this section?
Please provide reasons for your answer.
18. Do you support the proposed expanded scope for dispute resolution? Are there any
grounds you would add or remove? Please provide reasons for your answer.
19. What factors should the Ministry take into account when deciding on a body to hear or
decide these disputes?
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Questions summary
Section A: Questions on the existing framework:
1. Which elements of the existing land access framework for telecommunications do you
think are working well and should not be changed? Why?
2. If you have encountered issues with the application of the existing rules for
telecommunications land access what are the specific aspects of the rules that you have
found to be problematic and why?
Section B: Questions on the nature of the barriers to FTTP connections:
3. If you or your business is involved in the installation of Ultra-fast Broadband, is your
view of the barriers to FTTP connections aligned with what we have outlined in the
above section?
4. Are you aware of any problems relating to the installation of FTTP that are not outlined
in this section?
5. In your view, are problems with the current requirements for the installation of FTTP
significant enough to warrant legislative change? Please provide reasons.
Section C: Questions on proposal 1 - options to facilitate FTTP connections:
6. Would you prefer the deemed consent approach or the low impact facilities approach
or some combination of the two? Please state your reasons for your preference.
7. Would you support a move away from requiring written consent from affected
property owners to a request to connect UFB to an approach that assumed consent is
implied but provides a mechanism to opt-out?
8. If the requirement for written permission for access is changed, what conditions or
safeguards should be applied?
9. In what circumstances should an affected property owner be allowed to object to a
network operator accessing land they share with a neighbour to install a connection?
Section D: Questions on proposal 2 – allowing for deployment using existing utilities:
10. If you are a network operator who also owns or can arrange access to electricity
infrastructure, how would you make use of a right to deploy fibre alongside these
existing utilities? Please include as much detail as possible including whether you
intend to provide backhaul and/or customer connections and where you would use
such a right of access to deploy these services.
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT
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11. Do you consider that the safeguards and conditions outlined above strike the right
balance between enabling efficient deployment and protecting the rights of property
owners? If not, please explain why.
12. If you, or someone you represent, have land that is currently crossed by electricity
infrastructure, under what situations would you support the co-location of fibre on this
existing infrastructure?
13. Any right to deploy and maintain fibre with existing utilities needs to have a low impact
for those affected, what matters should the Ministry take into account when setting
the terms and conditions for access to private land to minimise the impact on owners?
Section E: Questions on proposal 3 – ongoing rights of access:
14. Should the rights that network operators have to access and maintain fibre networks be
similar to rights they have to access and maintain legacy copper telecommunications
networks? Please provide reasons for your answer.
15. What factors should the Ministry take into account when setting conditions for access
to installed infrastructure in order to minimise the impact on property owners and
provide for an efficient access process in this context?
16. If you are a provider of fibre services, how would the implementation of this proposal
impact on your decisions to follow through with complex or otherwise problematic
installations?
Section F: Questions on proposal 4 – a fair, accessible and expanded disputes resolution
process:
17. Do you support the stated objectives for dispute resolution set out in this section?
Please provide reasons for your answer.
18. Do you support the proposed expanded scope for dispute resolution? Are there any
grounds you would add or remove? Please provide reasons for your answer.
19. What factors should the Ministry take into account when deciding on a body to hear or
decide these disputes?
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Appendix 1: Submissions template
Please complete the following contact details:
Your name:
Your postal address:
Your email address:
Is your feedback on behalf of an organisation?
√
Yes
No
If yes, please write the name of the organisation and your position here:
What is your involvement in the telecommunications industry? (please tick those relevant)
√
Network operator
Retail service provider
Customer or end-user (current or potential) of fibre
Affected or potentially affected property owner
Other (please specify)
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If you or your organisation do not wish your name to be included in any summary of
submissions that the Ministry may publish, please advise here:
No, I do not want my name / organisations name published in any summary of
submissions
If you or your organisation object to the release of any information contained in this
submission, please advise here:
Section A: Questions on the existing framework
1.
Which elements of the existing land access framework for telecommunications do you
think are working well and should not be changed? Why?
2.
If you have encountered issues with the application of the existing rules for
telecommunications land access, what are the specific aspects of the rules that you have
found to be problematic and why?
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Section B: Questions on the nature of the barriers to FTTP connections
3.
If you or your business is involved in the installation of Ultra-fast Broadband, is your view
of the barriers to FTTP connections aligned with what we have outlined in this section (pg
14)?
4.
Are you aware of any problems relating to the installation of FTTP that are not outlined in
this section (pg 14)?
5.
In your view, are problems with the current requirements for the installation of fibre-tothe-premises significant enough to warrant legislative change? Please provide reasons.
√
Yes
No
Reasons for preference:
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Section C: Questions on proposal 1 - options to facilitate FTTP connections
6.
Would you prefer the deemed consent approach or the low impact facilities approach or
some combination of the two? Please state your reasons for your preference.
√
Deemed Consent approach
Low Impact Facilities approach
Combination of both
Reasons for preference:
7.
Would you support a move away from requiring written consent from affected property
owners to a request to connect UFB to an approach that assumed consent is implied but
provides a mechanism to opt-out?
√
Yes, I support an approach that assumes consent with a mechanism to opt-out
No, I do not support an approach that assumes consent with a mechanism to opt out
Reasons for preference:
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8.
If the requirement for written permission for access is changed, what conditions or
safeguards should be applied?
9.
In what circumstances should an affected property owner be allowed to object to a
network operator accessing land they share with a neighbour to install a connection?
Section D: Questions on proposal 2 – allowing for deployment using existing utilities
10. If you are a network operator who also owns or can arrange access to electricity
infrastructure, how would you make use of a right to deploy fibre alongside these existing
utilities? Please include as much detail as possible including whether you intend to
provide backhaul and/or customer connections and where you would use such a right of
access to deploy these services.
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11. Do you consider that the safeguards and conditions outlined above (pg 23) strike the
right balance between enabling efficient deployment and protecting the rights of
property owners?
√
Yes
No
If no, please explain why:
12. If you, or someone you represent, have land that is currently crossed by electricity
infrastructure, under what situations would you support the co-location of fibre on
this existing infrastructure?
13. Any right to deploy and maintain fibre with existing utilities needs to have a low
impact for those affected. What matters should the Ministry take into account when
setting the terms and conditions for access to private land to minimise the impact on
owners?
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Section E: Questions on proposal 3 – ongoing rights of access
14. Should the rights that network operators have to access and maintain fibre networks
be similar to rights they have to access and maintain legacy copper
telecommunications networks?
√
Yes
No
Please provide reasons for your answer:
15. What factors should MBIE take into account when setting conditions for access to
installed infrastructure in order to minimise the impact on property owners and
provide for an efficient access process in this context?
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16. If you are a provider of fibre services, how would the implementation of this proposal
impact on your decisions to follow through with complex or otherwise problematic
installations?
Section F: Questions on proposal 4 – a fair, accessible and expanded disputes resolution
process
17. Do you support the stated objectives for dispute resolution set out in this section (pg
29)?
√
Yes
No
Please provide reasons for your answer:
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18. Do you support the proposed expanded scope for dispute resolution?
√
Yes, I support the proposed expanded scope for dispute resolution
No, I do not support the proposed expanded scope for dispute resolution
Please provide reasons for your answer:
Are there any grounds you would add or remove?
19. What factors should the Ministry take into account when deciding on a body to hear or
decide these disputes?
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Section G: Other comments
20. What other comments or questions do you have about land access for
telecommunications?
Thank you for taking the time to complete this submission. Your feedback is appreciated.
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Appendix 2: Glossary of terms
Affected property owner – for the purposes of this document, this term means a person,
other than someone who has requested a connection, who has an ownership interest in the
land which will be affected by a proposed fibre installation and has a legal right to make
decisions in respect of that property.
Crown Fibre Holdings (CFH) – is the Crown Entity responsible for managing the government’s
investment in the first phase of the UFB initiative.
End-user – the person who is the ultimate recipient of a service.
Existing lines - defined in Section 5 of the Telecommunications Act 2001 as: existing lines—
(a) means any lines constructed by Telecom or any of its former subsidiaries before 1 April
1989; and
(b) includes any lines that were wholly or partly in existence, or for which work on the
construction, erection, or laying commenced, before 1 April 1989.
Fibre-to-the-premises (FTTP) – fibre connection from the fibre optic broadband network in the
street to an end-user’s premises (home or building).
Local Fibre Company (LFC) - refers to Northpower, WEL Networks, and Enable, three
companies who have partnered with the Crown to deliver the first phase of the Ultra-Fast
Broadband initiative.
The Ministry – the Ministry of Business, Innovation & Employment
Multi-Unit Complex (MUC) – a premises containing multiple units such as an apartment
building, a shopping mall or a business park. Defined in the Telecommunications Act 2001 as –
(a)
A building that contains 2 or more distinct units (including the land on which the
building is sited); or
(b)
A group of buildings that are used communally (including the land on which those
buildings are sited).
Network operator - telecommunications service providers who have, pursuant to section 103
of the Telecommunications Act 2001, successfully applied to be declared as such by the
Minister for Communications.
Ultra-Fast Broadband initiative (UFB) - a public/private partnership to build a fibre broadband
network to 75 per cent of New Zealanders by 2019.
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Appendix 3: Further information about the Multi-Unit
Complex Regime
The MUC Code
The MUC Code (the Code) is part of the wider access regime for multi-unit complexes set out
in the Telecommunications Act 2001, and was developed by the Ministry in consultation with
the telecommunications industry and other stakeholders.
The Code is designed to facilitate fibre installation in apartment and office buildings for
broadband services and came into effect on 30 May 2013. It sets out basic processes for
property owners and fibre deployment companies to follow when installing and servicing fibre
networks in buildings with multiple owners. The Code covers issues such as gaining consent for
installation, apportioning costs and ongoing access for maintenance and upgrades.
MUCs Dispute Resolution Scheme
A consumer complaints system has been created by the New Zealand Telecommunications
Carriers Forum (TCF). It is an industry based system designed to resolve complaints with
respect to the MUC Code and the MUC provisions of the Telecommunications Act 2001.
However, it does not provide a mechanism for resolving disputes regarding the refusal to
consent to access by a third party land owner.
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