Telco Site Licences

Issue

Further comments

Grant of Licence

It is important that the building owner formally grants a licence to the Telco, and that the Telco recognises that they are installing their equipment on the building subject to the terms of a written agreement.

Exclusivity

Our standard Site Licence is non-exclusive. This allows other parties (including the building owner) to use and access the licensed area, while not causing any major interference to the operations of the mobile tower.

Furthermore, the relationship of the parties is not one of 'landlord and tenant', but rather 'licensor and licensee'. This precludes the agreement from being a 'lease' in the legal sense, giving greater flexibility to the parties as to the terms of the agreement.

Access

The terms of access to the building is an important issue. The issues to be considered include:

- When will installation and maintenance occur?

- Will security procedures prevent or limit access?

- Is there a time that works can be carried out that will not disrupt other tenants?

- Access to the licensed area in an emergency?

- Who will bear the costs associated with access?

- What happens if the ACMA designates the licensed area as a restricted area?

Our Site Licence identifies and apportions responsibility with regard to each of these questions.

Installation

There are many tasks that need to be undertaken, both prior to and during the installation of the equipment on the licensed area. Prior to installation, parties should consider whether:

- All government authorisations have been granted;

- Clear plans have been given to the building owner;

- A job safety analysis has been undertaken and provided to the building owner;

- Relevant insurances have been taken out; and

- Separate power meters have been arranged.

The parties should also consider any maintenance requirements, and which party will bear these costs.

Interference

Interference is an issue for both the building owner and the Telco. The parties should consider:

- Whether the mobile installation will interfere with other equipment located on or around the building, how will interference be mitigated (and at which party's cost), and the dispute resolution or termination events that apply in the event that such interference in not able to be mitigated or eliminated; and

- The mechanisms that apply in relation to physical interference with the Telco’s licensed area, including interference from other mobile installations, or maintenance work that has to be carried out on the building that effects the operation of the mobile installation.

Electromagnetic Emissions (EME) or Radiation

An issue peculiar to mobile carrier licences is how the parties deal with potential or actual radiation hazards. Provisions must ensure that the parties delegate responsibility to ensure EME is kept within statutory limits, adequate records are kept, and appropriate insurance cover is maintained.

Change in equipment

The issue of radiation/EME is also important in considering exactly what equipment comprises the mobile installation . If any substitute or replacement equipment is installed, that equipment must also not cause any additional interference or radiation.

Some antennas may need to be rotated within the licensed area during the term of the licence. Care needs to be taken as to any allowances or constraints on rotation – for example, whether such a rotation would interfere with the operation of any other equipment.

Change in licensed area

Over the term of the licence, some events may make it necessary for the licensed area to be substituted with another area. In particular, if the building is to be demolished or redeveloped. The Site Licence should include:

- Substitution powers; and/or

- Termination, compensation or adjustment events.

Equipment removal

If at the expiry of the term of the agreement the parties do not want to renew, provision should be made with respect to:

- The timely removal of the equipment;

- What happens when the equipment is abandoned; and

- What happens when a party fails to comply with the removal and reinstatement provisions.

Reports

There are a number of reports that should be kept during and after the licence is in effect. These include:

- A maintenance log;

- An electromagnetic emissions (EME) cumulative report;

- Reports relating to structural integrity; and

- Occupational health and safety reports.

Our Site Licence provides each parties’ obligations with respect to each report, and the times that one party can require the other to produce such reports.

Other licenses

Sometimes there will be more than one mobile installation on the one building. Care should be taken about the conditions by which future licenses can be granted so as:

- Not to restrict the rights of the building owner; and

- Not to cause interference to the mobile carrier under the licence.

Warranties and indemnities

Warranties reduce the need for parties to conduct due diligence into aspects of the licence that may be time consuming or expensive to achieve. For example, warranties should deal with:

- Authority of parties entering into the licence;

- Prior representations;

- Whether each party has the relevant expertise for the tasks it has been assigned;

- Whether a party has received a statutory compliance notice from a state or government authority;

- Apportionment of risk;

- Security obligations with respect to the building the mobile tower is on;

- Responsibility with respect to electrical systems;

- Whether a party has previously inspected the licensed area; and

- Any limitations of warranties.

A comprehensive indemnity should also be included in the Site Licence allowing the building owner to recover from the Telco in the event of a breach of a warranty or other term of the agreement.

Insurance

Insurance policies must be maintained during the term of the licence. Polices might include:

- Public liability insurance; and

- Workers compensation insurance.

Default and termination

Events that trigger a termination can vary, but usually include:

- Insolvency or other financial difficulty;

- Destruction of the building or licensed area;

- Development or redevelopment of the building;

- Cross default (a default in another agreement the parties have);

- Force majeure;

- The expiry of the licence;

- The expiry of any holding over provisions;

- Excessive interference with the Telco’s equipment; and

- Where equipment becomes a radiation hazard.

Limits to liability

In many instances, the building owner will be acting as a trustee, custodian or joint land holder. In such a case, the parties will have a choice as to the exposure of the trustee, custodian or land holder with respect to any liabilities imposed on that party in the licence.

- A trustee can either be jointly and severally liable, enhancing risk, or limit its liability to the assets of a particular trust. Similar provisions should deal with responsible entities who appoint custodians to hold assets; and

- Where there are multiple holders of land to which the mobile tower will be affixed, provisions should deal with any limitations on the liability of each holder.

Statutory provisions

The Telecommunications Act 1997 (Cth) gives certain powers to Telcos to force an owner to have a mobile facility installed. The Site Licence limits the ability (to the extent permitted by law) of the Telco to use these powers, and creates a financial incentive for the parties to come to an agreement regarding installation, rather than resorting to the Act.

Costs

There are many instances where a party will incur costs when installing, substituting, repairing or removing the equipment. Responsibility for these costs should be clearly outlined in the agreement. Common costs include:

- Installing the equipment;

- Maintaining the equipment;

- Varying the equipment;

- Providing security in respect of the equipment and the building;

- Training sessions;

- Drafting of plans;

- Maintaining insurance;

- Obtaining consents;

- Preparing a job safety analysis;

- Undertaking radiation (EME) audit costs;

- Installing signage or notices;

- Resolving disputes;

- Providing services and utilities; and

- Rectifying a breach or default of the licence.