OPTA, the Dutch regulatory authority, has today published its decision ("Beschikking") in a rights-of-way case opposing Essent Kabelcom (Cable TV / telecoms operator) and the municipality of Best.

The case concerns a situation (which occurs relatively frequently) whereby telecommunications operators are requested to relocate their underground infrastructure (e.g. move it to the other side of the street) because the municipality or a landowner needs to make use, respectively, of the public domain or its private property (e.g. to widen a street, dig a tunnel, erect a new building, etc.)

Essent Kabelcom was of the opinion that, in this particular case involving the municipality of Best (which concerned the widening of a street and the planting of trees), it was not absolutely essential for its infrastructure to be relocated. Furthermore, Essent Kabelcom argued that it was being forced to relocate its infrastructure to make room for infrastructure of third parties (i.e. not for the widening of the road itself). Also, the request for relocation received by Essent Kabelcom did not emanate directly from the municipality, but from a civil works contractor. However, eventually, Essent Kabelcom agreed to the request for relocation.

The municipality of Best insisted (by invoking the general principle contained in article 5.7, para 1 of the Telecommunications Act which is a quid pro quo for the principle of gratuitous rights-of-way) that the costs of the relocation should be borne entirely by Essent Kabelcom.

A dispute arose, and was submitted to OPTA for arbitration.

OPTA ruled against the municipality of Best, on the grounds that this particular case represents a situation covered by article 5.7, para 2 of the Telecommunications Act. Therefore, given the circumstances of the case, Essent Kabelcom is not required to bear the costs of relocation.

The full text of the OPTA ruling (in Dutch) can be accessed by clicking here.

Note: several other rulings on relocation and other rights-of-way cases have been issued by OPTA. For further details, or for a discussion, please contact Alexa Veller.