Over the past weeks many bodies corporate have received, and many more will receive from Pipe Networks (PIPE), documentation containing a Land Access and Activity Notice (LAAN) as part of that carrier’s major expansion of its FTTB communications network.
The complex issues, and indeed the perceived blunt manner of delivery, have quite rightfully had many body corporate managers and committees concerned as to what are the appropriate steps which ought to be taken or not taken, considering the nature of community living and the provisions of the BCCMA.
This article, whilst focussing on the current rollout by PIPE, does not attempt to make an opinion on the benefits of that carrier's product or the manner in which they are rolling out, but rather to assist those community managers and committees to properly consider the issues specifically relevant to them.
It is fair to say that on the face of the LAANs received that PIPE are undertaking the whole activity at their own cost and at their own risk – on the basis that lot owners/tenants will opt to connect to the upgraded services. This may well be an attraction/benefit to the building, however each body corporate would need to consider the impact on other arrangements in place (if any) and their individual circumstances. The LAAN ought only focus on common property. If a lot owner wants a FTTP connection to his or her lot then that is a separate matter between the service provider and the lot owner.
For those not familiar with the Federal Telecommunications Act, and the array of rights it grants to licenced carriers, the following are fair questions for committees to ask upon receiving a LAAN:
- Can the carrier really come onto your common property and install its equipment without consultation or consent?
- Is there any way you can stop or object to the proposed installation?
- Can steps be taken to stop a carrier from accessing the premises or exercising its rights under the Act, and are there penalties?
- Should you take steps to object – is that really representative of the body corporate as a whole?
- Is the installation a positive asset or a restriction on competition or future choice of lot owners?
- What are your responsibilities to each lot owner or occupant in the circumstances?
- Can you be indemnified by the carrier?
- Should you respond to PIPE or sign anything – and if so, will that compromise the body corporate's position?
- How do you put yourselves off risk and/or are your hands tied?
- Should you sign anything?
To answer some of these questions, Schedule 3 to the Telecommunications Act 1997 does provide licenced carriers with various powers and immunities including the rights of access to private property, when the proposed installation is deemed "low impact". We have reviewed some examples of the LAANs served on some buildings, and generally speaking it would appear for most, that the equipment and the mode of installation would be deemed as low impact, even in residential buildings. Whilst this might seem draconian, it is the law, and the courts do tend to support the carrier’s rights on the grounds of promotion of competition in the marketplace.
However each LAAN must be considered on its merits, and depending on what the attitude of the body corporate is to the activity, may dictate on the actions to be taken by the body corporate.
We can provide advice on the general rights of the carriers to inspect and to install and, whether the LAAN is properly constructed and has been properly served to be enforceable. We can assist in the objection process to the carrier and to the Telecommunication Industry Ombudsman (TIO) if necessary - noting there are limited grounds to object only.
If a body corporate does wish to object then they should take action quickly. The LAAN must state clearly the steps an owner may take.
Indeed there are many other considerations for the body corporate.
Should you seek compensation?
You may have been receiving a licence or lease fee from other carriers such as Telstra or Optus and whilst the Act states an owner should be compensated, without going into chapter and verse, we hold the view that claims or requests for monetary compensation are unlikely to succeed in this scenario. It is also likely that PIPE will not be willing to offer such similar compensation. Lack of financial compensation is not a valid ground for objection.
We understand that in certain buildings PIPE have indicated that their equipment may draw power and that they will offer a level of compensation for the electricity usage.
We also understand that PIPE have made comments that there is no cost to the body corporate and no compulsion to use the service, nor any loss of, or impact to existing services. However, committees ought to be placed with superior information regarding the likely effect of the installation on the land for future (like or otherwise) installations and what this may mean to the competition choice/flexibility of services to lot owners and the overall impact of the scheme. This may be very important to some lot owners who are anticipating and awaiting the offerings of the NBN.
- What about your exposure to permit unsupervised work on common property, your duties to other carriers who may have equipment in the MDF room, and indeed to occupants in the building?
- • What is best practice for the installation and site management etc - how can you be sure that damage is avoided/rectified?
- Indeed what are your duties to PIPE’S contractors for any risks or site issues relevant to them? What if exclusive use has been granted over some of the relevant common property?
- How is your body corporate’s insurance affected?
- How do you consider your privacy responsibilities to each lot owner and occupier?
- What are the ongoing maintenance obligations, and how are these to be played out over time?
The Act generally covers much of the above, and the carrier ought to be able to provide additional information regarding its arrangements with other carriers but as always, your community building is different with different circumstances, and early dialogue as to these issues ought to be had with the carrier.
We have also witnessed a request by PIPE for Community Managers to sign agreements permitting earlier access and waiving various rights. We strongly caution any Community Manager and indeed any Committee to signing anything which amounts to a waiver, as it could be construed later to have serious ramifications to your limited protection granted by the Act.
What is a committee’s risk to do nothing, and indeed what is the risk if proactive steps are taken? These are the issues that a committee ought to seek legal advice on.