Regulating the laying of infrastructure in the utilities and services sectors : a comparative analysis of the rights and obligations of utilities, network and service providers

Abstract

The thesis will critically reflect upon Chapter 81 of the Laws of Malta, the Utilities and Services (Regulation of certain works) act which regulates the infrastructures of utilities and services in Malta and Directive 2014/61 EU on measures to reduce the cost of deploying high-speed electronic communications networks. The thesis will analyse the rights and obligations of utilities and service providers when laying out their infrastructure. Focussing primarily on the electronic communications and energy sectors, the thesis will analyse the legal position resulting when a utility or service provider wishes to pass its infrastructure through third party property (Rights of Way).Closely related to the above is the Right of Co-Location, where in order to avoid the duplication of costly works and damage to public and private property which is necessitated by the laying of a physical infrastructure, the owner of an incumbent infrastructure may be obliged by law and through remedies imposed by a regulator or other public body, to share its facilities, such as ducts, conduits, manholes and cabinets with other entities wishing to pass their own infrastructure. A clear example of this is found in the electronic communications regulatory framework. The thesis will analyse how these obligations are being imposed in Malta and other countries and whether there is scope of rendering such obligations more effective and, where absent, imposing them. In doing so, the thesis will consider practical issues, such as where the incumbent service provider attempts to avoid the effect of such obligations by entering into agreements with the land owner, in cases of gated communities, to disallow the entry of other infrastructure over the land. Another aspect examined is the imposition of adequate access, interconnection and interoperability obligations over network providers and infrastructure owners, which serve to reduce the need of duplication of infrastructure. Taking the electronic communications regulatory framework as a model, the imposition of a certain degree of access and interconnection obligations has today achieved a harmonised position throughout the European Member States. The thesis suggests further obligations and remedies apart from those found in the regulatory framework which may be applied particularly in light of NGA roll out.