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In April 2009 the Telecoms and Internet Federation (TIF), an industry divisional grouping of IBEC, made a submission to John Gormely, Minister for the Environment, Heritage and Local Government where it voiced operators’ concerns regarding development contributions charged by local authorities on telecommunications base stations.

The TIF made a number of recommendations to the Minister including a call for amendment of the current planning legislation to ensure nationwide consistency on the setting of development contributions and to eliminate repeat development contributions for retention applications.

Development contribution sums for telecoms infrastructure has spiraled out of control within the past two years, in particular as Local Development Plans and Development Contributions Schemes were updated across the country. The more extreme local authorities are levying penal contribution levies, for example on December 28^th 2008 Carrickmacross Town Council signed into operation Contribution Scheme which imposes €50,000 in development contributions for new mast development plus an additional €20,000 per antenna added. This local authority is not on its own, Monaghan Town Council currently levy €54,480 per mast and €20,950 per antenna added, while North Tipperary County Council levy €20,000 per apparatus. The majority of remaining authorities have heaped significant increases in contribution levies on mobile operators over the period with the average contribution for those councils who required a specific telecommunications contribution through their plan was €11,517.53 (Source TIF 2009).

In the meantime the Minister’s department has drafted a Bill (Planning and Development (Amendment) Bill 2009) to amend existing planning and development legislation. This Bill is presently going through the houses of the Oireachtas and will, when approved, amend planning legislation. Unfortunately, the proposed bill does not address any of the issues raised by the TIF with regard to the application and quantum of development contributions applicable to telecoms infrastructure.

We recommend that mobile industry leaders take immediate issue with the TIF to ascertain now if any scope exists to influence legislation before it is signed into law.

One new way for mobile phone operators to increase their service offering is by deploying femtocells within the home and office environments. This new technology presents a large array of benefits to consumers and mobile phone providers alike. A femtocell is a small transmit/receive device installed within a household or office and connected to the internet which allows mobile phone operators to provide improved coverage for up to four mobile phones within a building.

The benefits for the consumer are improved coverage and the convenience of being able to use the mobile phone, as well as integrating the home computers with the phone network. This offers potentially a huge array of functionality to the home: think control your TV by mobile phone, leave virtual ‘fridge notes’ to be delivered when recipient returns home, remotely control air-conditioning, synchronise music collections from phone to PC etc …

For mobile phone operators the marketing of femtocells offers a whole range of novel advantages. The first advantage is that of improved coverage within the home or work environment without the costly deployment of macro cells in low coverage areas. Secondly, it allows operators to win more market share from the fixed line operators. In deploying femtocells operators will enjoy increased and secure revenues, reduced churn, and the ability to offer cheaper services (cheap calls when making calls from home) to the consumer, not to mention all the customisable, chargeable applications the operators can offer.

At a time when mobile phone users have dramatically increased their data usage with devices like the iPhone and other Smart phones which puts significant strain on the networks, a femtocell will relieve the traffic on the main network, as the data is backhauled through the end users internet connection.

The majority of mobile phone usage takes place in the home and work environment and therefore it makes great sense to improve indoor coverage with the use of femtocells. This has the added benefit to consumers that their handset batteries last longer when used with in femtocell.

On a technical note, femtocells are small base stations within the home, capable of supporting up to four handsets at a time, all contained in a discrete unit barely bigger than a modem. Femtocells are unique in that they use the licensed spectrum which means they have to be deployed by licensed mobile phone operators.

Criticism regarding femtocells is centred on the fact that the end-user has to pay for the internet connection as well as for the coverage. Furthermore, there seems to be room for improvement regarding interference with nearby networks.

In the UK the main mobile phone operators, represented by the Mobile Operators Association, have committed to a Best Practice statement in respect of the planning and development of base stations. The aim of the Ten Commitments is to create the required level of transparency, public involvement and information with the process of building mobile phone base stations.

The high level of standardization of the planning and development process might seem like a burden to developers but the aim is to create a process which eliminates potential setbacks further down the line in the progress of site development, like local opposition, planning refusals etc.

A range of tools and standardization has been developed which supports the Ten Commitments. For example the Traffic Light Model determines the level of public consultation and the compliance with ICNIRP has been standardized to include standardized forms for ease of reference.

Below is a brief outline of the Ten Commitments

1. Improved Consultation with Communities

Develop, with other stakeholders, clear standards and procedures to deliver significantly improved consultation with local communities. The Traffic Light Model is used by the acquisition agent to determine the level of public consultation.

2. Detailed Consultations with Planners

The operators participate in obligatory pre-rollout and pre-application consultation with local planning authorities.

3. Site Sharing

Publish clear, transparent and accountable criteria and cross-industry agreement on site sharing, against which progress will be published regularly.

4. Workshops for Councils

Establish professional development workshops on technological developments within telecommunications for local authority officers and elected members.

5. Database of Base Station Sites

Deliver, with the Government, a database of information available to the public on radio base stations.

6. Compliance with ICNIRP Public Exposure Level Guidance

Assess all radio base stations for international (ICNIRP) compliance for public exposure, and produce a programme for ICNIRP compliance for all radio base stations as recommended by the Independent Expert Group on Mobile Phones (IEGMP).

7. ICNIRP Certification

Provide, as part of planning applications for radio base stations, a certification of compliance with ICNIRP public exposure guidelines.

8. Prompt Responses to Enquiries

Provide specific staff resources to respond to complaints and enquiries about radio base stations, within ten working days.

9. Support Research into Health and Mobile Phones

Begin financially supporting the Government’s independent scientific research programme on mobile communications health issues.

10. Standard Documentation for Planning Submissions

Develop standard supporting documentation for all planning submissions whether for full planning or prior approval.

While operators in Ireland are not obliged to sign up to the Ten Commitments, it being a UK standards only, they do in fact act in accordance with the commitments. For example Comreg Policy No 03/28R, essentially a signed commitment to site sharing, signed off by all operators in 2003 set out a code of practice for site sharing to which O2, Vodafone, Meteor and H3G are committed. Another common set of standards but within a planning context is the DOELG Guidelines 1996.

The difficulty is that all these strands are not pulled together under an umbrella document or standard, and for this reason we believe it is in the operators and the public interest to adopt a modified version of the Ten Commitments in Ireland.

In the UK the Mobile Operators Association (MOA) represents the five UK mobile network operators – 3, O2, Orange, T-Mobile and Vodafone – on radio frequency health and safety and associated town planning issues. This association presents single focal point for the public whereby industry issues are addressed, where the public can inspect shared industry standards. Deloitte and Touche regularly audit the UK mobile companies for compliance with the Ten Commitments.

IBEC’s telecoms industry division the ICIA (Irish Cellular Indistry Association) of the TIF (Telecoms and Internet Federation) are well positioned to provide a single focal point for the operators in the Irish jurisdiction. By increasing its website profile and by implementing a single umbrella standard such as the Ten Commitments to Ireland the operators will benefit from the increased transparency that this unified approach would bring.

The term Broadband has been newly defined by recent announcements in the telecoms industry. On the one hand Imagine backed by a consortium including Google and Intel, recently launched the WiMax network. Initially this new technology will offer customers speeds of up to 10MBs but is expected to be switched up to 40Mbs within a year.

On the other hand mobile operators are quickly moving along to increase their speeds by rolling out the 4G network, which is also known as Long Term Evolution (LTE). This new technology is expected to increase broadband speeds up to 150Mbs, but is considered to be 2 years off.

Eircom is rolling out ADSL 2+ which can deliver speeds of up to 24Mbs, which is a limiting factor for operators providing services through Eircom’s network.

The real battle is perceived to take place between the WiMax technology, as rolled out by Imagine, and the 4G technology embraced by the mobile operators on the other side.

While the mobile operators remain critical of WiMax, to the extent of dismissing its ability to break the 3G broadband platform, Imagine backers do not place much confidence in the operators delivering the rollout of the next generation network in the near future.

On a political level it is believed that the blended approach will carry the country into a fast broadband era, as communicated by Eamon Ryan, Minister for Communications.

Code Powers, are statutory rights going beyond normal security of tenure rights granted under the Landlord and Tenant Act 1954.

The Code can be used to secure rights of entry against landowners that seek to use an operators need to complete a network as a means of delaying or ransoming. To date this has only been used to lay cables spanning several land ownerships where each piece of the jigsaw must be acquired before the whole scheme can proceed. Operators may also use the Code to enter onto site and to commence build in advance of formalizing lease arrangements where permitted to do so in writing by the site owner. Once on the lands the operator may remain on site even in the absence of contractual completion.

The Code can also be used by operators as a means of remaining on site after their contractual term has expired as a means of protecting the network.

Operators generally use Code Powers as a matter of last resort where a landowner has acted in a protracted or aggressive manner. Operators may also use the Code as a means of remaining on site and on air where the contractual term has expired while a replacement site is being acquired.

Ultimately disputes and consideration/compensation are matters for determination by the courts, but much can be done to lessen the need for litigation. The secret is early communication and constant dialogue together with a willingness to see both sides’ issues.

The legislative framework supporting Code Powers is The Telecommunications Act 1984 as extended by The Communications Act 2003.

The scope for appealing hefty development contributions levied by cash-strapped councils to telecoms development is often quite narrow and limited to appealing the misapplication of the scheme.

An Bord Pleanála (ABP) recently issued a favourable order to a licensed operator who successfully appealed the levying of a contribution (and a bond) for the attachment of antennas to an existing structure in Co Mayo. ABP removed both conditions reasoning the Mayo County Council Development Contribution Scheme does not provide for a Telecommunication development category.

Where a misapplication of the development contribution scheme cannot be demonstrated ABP’s hands are tied and are likely to uphold any conditions attached to local authority grants as has been demonstrated in numerous recent ABP cases where operators appealed development contributions.

Watch out for the following County Councils: Monaghan, Leitrim, South Tipperary and Offaly charge amounts around €20,000 or more (Monaghan €30,000) per mast! And the contribution scheme does not distinguish between new structures and retention structures.

Charterhouse has developed a profile of Development Contribution Schemes currently operating in the Republic of Ireland. The findings are alarming. Several local authorities are levying hard hitting contribution fees on new mast infrastructure and existing mast infrastructure where planning permission has to be regularly renewed. At the time of writing, Monaghan Town Council sets the highest rate at €51,480 per mast, irrespective of whether the mast is new or existing. Additionally, it levies a €20,590 change for each antenna installed on existing masts. We estimate that operators are paying approximately €1 million in development contributions annually. Now this surely is unsustainable. Operators can expect no relief from local authorities who desperately need the funding and have targeted ICT operators for soft money. Charterhouse has a strategy for tackling this issue. Contact us for more details.

Section 47 of the Civil Law (Miscellaneous Provisions) Act 2008 extends the opt out (or contracting out) provisions to all tenants of business premises provided the tenant has obtained independent legal advice and signed a deed of renunciation. These changes came into force at midnight on 20th July 2008

The Civil Law (Miscellaneous Provisions) Act 2008 provides that any tenant (regardless of user) can contract out of its renewal rights under the Landlord and Tenant Acts. This option, which under the 1994 Act, was only available to office tenants, will now be available to all tenants. In effect this will mean that the standard four year nine month tenancies will cease to be used and parties will enter into longer term leases. To facilitate a valid contracting out of the Act, the tenant must receive independent legal advice regarding that specific matter and he must execute a formal renunciation.

It is acknowledged that in Ireland, unlike the UK, there is no reported incident of ICT operators enforcing rights to claim a new tenancy at the end of an old tenancy. Nevertheless, in the future no one can predict whether ICT tenants choose to avail of the tenancy rights granted to them under landlord and tenant legislation.