DoT notifies right of way rules

The Department of Telecommunication (DOT) on Wednesday notified the right of way rules under the Telecommunications Act, 2023, which prescribe how telecommunication infrastructure, including mobile towers, poles, common ducts and conduits to hold cabling, small cells, street furniture, and the like, can be installed over public and private property.
These rules have been notified under Sections 11, 12, 15, 17, and 56 of the Telecom Act and supersede the Indian Telegraph Right of Way Rules, 2016, and the Indian Telegraph (Infrastructure Safety) Rules, 2022. They will come into force on January 1, 2025.
Between the draft rules that were released for a thirty-day public consultation on July 11 and the notified rules, three major changes have been made.
First, the central and state governments are now empowered to direct the authorised entities (entities authorised/licensed to provide telecom services in the country) and public entities that own the infrastructure to set up temporary telecom network above the ground “in public interest or in case of special public events” under Rule 10. This, Aprajita Rana, partner at AZB & Partners, is only to set up temporary projects in case there is a breakdown or the government needs to set up such infrastructure for a temporary purpose.
Second, the rules introduce the concept of force majeure to extend the timelines given in the rules for application and granting of permissions. A force majeure event, according to the rules, means and is limited to war or hostilities; major riots or civil commotion; earthquake, flood, tempest, lightning or other natural physical disasters; and restrictions imposed by the central or state governments. For Rana, this is a good move as it gives facility providers more time to execute projects in case of notified cases of force majeure that are beyond the control of the entities.
Third, under rule 12, the central government can notify projects as “special projects” in “public interest” for which all permissions required for establishing the overground or underground network will be “deemed to have been granted” and the digital portal will automatically generate a “deemed permission” for such applications. Such projects will not be subject to any fees. The public entity in charge will provide the terms and conditions for this “deemed permission” within seven days.
“This will help in 5G expansion and will ease establishment of important telecom projects. This will not impact projects proposed to be set up on private land, that will continue to be governed by the separate process prescribed under chapter V of the rules,” Rana said.
Rana also lauded the inclusion of procedures and permissions for “maintenance” of telecom networks in addition to the proposed establishment and operations. “Given the facility providers are defined broadly, it is more practical to realise that many consent may be needed for maintenance purposes also,” she said.
Under the notified rules, if the application by a facility provider is rejected, the public entity must refund 90% of the fee paid. In the draft rules, the refund was set at 80%.
In the draft rules, all timelines were given in calendar days. Those have been replaced by “days”, as defined under the General Clauses Act, 1897 which refers to working days. Seven working days are a longer period of time than seven calendar days.
Few definitions have also been revised. For instance, a pole is now an above-ground mast (not including a mobile tower) of a height of up to 13 metres. In the draft rules, the maximum height was eight metres. The definition of “street furniture” now explicitly includes metro lines and pillars, sign boards, hoardings and kiosks.
For Rana, three changes are concerning.
First, under rule 6, if a facility provider has to conduct a survey for a telecom project, they must seek permission for it. This was not the case under the 2016 rules or the draft rules. “While the timeline of seven days is not extensive and no charge will be levied by the government, it adds another step at the pre-check stage,” she said.
Second, under rule 20, when a private owner wants to exercise his/her legal right (such as renovation) over their property where a telecom network has been established, the private owner will be responsible for any damage caused to the network and the private owner will have to pay the compensation. “This is a new change and it should be a point of negotiation among private owners and facility providers prior to granting permission for such projects,” she said.
Third, the definition of the “portal” has been revised to refer to a central government-notified portal that contains “links to one or more digital portals of various public entities”. “The rules appeared to say that one will not need to deal with multiple public entities or portals for grant of permission, but now mentioning that other portals can be linked on Sugam Sanchar portals should not defeat the purpose of having a single window clearance for all right of way permissions from all public entities from this portal itself,” she said.
Under the rules, for installation of small cells, the facility provider will pay the public entity ₹300 per annum for per street furniture in urban area and ₹150 per annum per street furniture in rural area. In case of telecom line, this compensation will be ₹100 per annum per street furniture. For deployment of small cells on buildings and structures under the control of the public entity, this fee will be zero.
The draft rules had proposed that the fee for examining the application for establishment of underground telecom network be a one-time charge of ₹1,000 per kilometre. The notified rules specify that this includes submarine cables on land and in territorial waters.
For examination of application of aboveground telecom network, the application fee will be ₹10,000 per mobile tower and ₹1,000 per kilometre for overground telecom lines. The application fee for installation of poles, small cells and telecom lines is zero.