National laws regarding property
transactions can affect the effectiveness of the telecommunications legislation
in several ways. Property taxes, for instance, can affect investment in
the sector. In addition to taxes, property laws with regard to ownership
rights and government confiscation are other factors that investors usually
consider when deciding whether to invest in a particular country, and affect
the level of public confidence in the stability of the sector. Some
countries, such as Jordan, have “investor friendly” property laws.
Foreign entities are allowed to own or lease property in Jordan for investment
or personal use, provided that their home countries permit reciprocal rights to
Jordanians. Investment properties have to be developed within five years
from the date of approval, and foreign companies which hold a majority share in
a Jordanian company or wholly owned subsidiaries of foreign companies, are
automatically given national treatment with respect to ownership of land where
the company’s business allows for ownership of land or real estate.1
Property laws also affect the actual
application of the rights granted to licensees under the telecommunications
legislation with regard to their access to critical networks and
infrastructure. The ability of operators to offer telecommunications
services often requires the building of infrastructure, such as installation of
cable or optical fiber lines, poles, ducts, and construction of towers, which
in turn involves the need to access public or private property.
Telecommunications operators’ access to rights of way is often reflected in
telecommunications legislation, which gives the government the right to
appropriate property for such use. Where such appropriation involves
private ownership, the landowner is usually compensated for the use of
property. However, access to property as provided under the
telecommunications law can become complicated in practice, depending on the
property laws existing in the particular country. While the federal
government has control over federal property, states and municipalities often
have jurisdiction over property under their administration.
For example, some countries, such as
Brazil, have property laws that are applied at the federal, the state and the
municipal level. Rights of way and access of telecommunications operators
to property in Brazil are governed in part by the federal Civil Code,2 the
Telecommunications Law,3 and the municipal laws of each state. Articles
21 and 22 of the Constitution establish the exclusive authority of the federal
government to legislate and exploit telecommunications services in Brazil,
which is defined as a public service. The power of the government to
regulate telecommunications has been delegated to the regulatory agency,
Anatel, which regulates the sector under the provisions of the
Telecommunications Law. Article 74 of the Telecommunications Law
specifically states that the telecommunications licensee is not exempt from
complying with engineering regulations and municipal, state and federal laws
regarding construction and cable and equipment installation in public
areas. Articles 20 and 30 of the Constitution provide that states and
municipalities may be authorized to legislate upon specific matters related to
the provision of telecommunications services, such as the rights of
municipalities to legislate on urban planning and environmental matters and to
charge telecommunications operators for the use and occupation of the land
under their jurisdiction. Under Title II, Article 1286 of the Civil Code,
the owner of a real property must allow public service providers to install
cables, ducts and conduits for the provision of public services, pursuant to
the payment of a proper indemnity. Article 1369 of the Civil Code states
that property owners may confer to any third party the right to build on its
land by means of a public deed, and under Article 1371, the tenant is
responsible for payment of fees and taxes applicable to the property.
ENDNOTES
1 Jordan Economic Boycott Law no. 11
of 1995. See also
U.S. Department of State, 2005 Investment Climate Statement – Jordan, available at http://www.state.gov/e/eb/ifd/2005/42064.htm.
2 Brazil Civil Law, as amended,
(Código Civil Brasileiro), Law no. 10.406, 10 January 2002.
3 General Telecommunications Law, Law
No. 9.472 of 16 July 1997, available
at http://www.planalto.gov.br/ccivil_03/Leis/L9472.htm.