(Provisional Translation)

      The participating Ministries of the Group* held thirteen meetings from April through December this year to conduct a study relating to "Rights of Way"** in Japan. This exercise was based on the ongoing three year program for the promotion of deregulation and the "First Joint Status Report on the U.S.-Japan Enhanced Initiative on Deregulation and Competition Policy". In the process, the Group invited representatives from broad range of domestic and foreign entities such as the companies and organizations concerned, as well as the U.S. government and EU to express their views.

*Group : Councillors' Office on Internal Affairs of Cabinet Secretariat, Fair Trade Commission, National Police Agency, Economic Planning Agency, Ministry of Justice, Ministry of Foreign Affairs, Ministry of Finance, Ministry of Health and Welfare, Ministry of International Trade and Industry, Ministry of Transport, Ministry of Posts and Telecommunications, and Ministry of Construction

**Rights of way : A legal interest for telecommunications carriers and cable television operators to use or to pass over or under another entity's property such as land and bottom of the water, in order to lay and maintain cable (electric wires and support equipment (poles etc.)) and aerial (antenna) as well as their attachment such as a manhole. It could also refer to the strip of the property thus used.

1. Importance of Facilitating Laying of Cables

      With the background of the liberalization in the information and telecommunications field and of the recent significant technological development, many new carriers have entered the information and telecommunications market, and various new services have been provided. These trends are expected to grow further. Therefore, it is anticipated that these growing trends will lead to the greater demand for laying of cables by telecommunications carriers and cable television operators. It is also expected that the 21st century will bring the "advanced information and telecommunications society", and it will be important for Japanese people to have facilitated, inexpensive and diversified access to information.
      Facilitating laying of cables when telecommunications carriers and cable television operators start providing services and when they enlarge the service area enables them to lower the rate and to provide various services through active competition.
      Taking these points into consideration, it is beneficial, upon submission of application laying of cables by these carriers and operators, to endeavor to facilitate laying of cables with open, non-discriminatory and transparent procedures by the entity who owns or controls the land, facility and other property (hereinafter "the owner or controller").

2. Outline of the Result of the Study

      The Study Group has conducted its study on the existing condition relating to "Rights of Way" in Japan with basic recognition mentioned above.

(1) Study concerning the "Rights of Way" from Legal Point of View
      When telecommunications carriers and cable television operators lay their cables, relations with owner or controller will be important issues. At the present time, the Telecommunications Business Law and other related laws and orders entitle Type I telecommunications carriers to certain rights when they use public and private land (so-called "utility business privilege"), and cable television operators are also entitled to some favorable treatment for setting-up their infrastructure.
      If telecommunications carriers and cable television operators are to be granted further facilitation of the laying of cables by way of a new legislation, it also entails the restriction of the rights of the owner or controller. The Study Group recognizes the benefit of facilitating laying of cables in light of the public character of telecommunications and cable television businesses. However, the considerable part of the problems raised at hearings can be resolved by the clarification of the existing condition and the proposed measures below. At this moment, therefore, there is not sufficient need for entitling telecommunication carriers and cable television operators to improved measures by law and restricting the rights of the owner or controller.

(2) The Existing Condition relating to "Rights of Way" in Japan and proposed Measures for Improvements
      As a result of hearings from relevant ministries, agencies, groups and companies, the Study Group understands that relations among private companies are governed by the contract and that the owner or controller basically treats telecommunications carriers and cable television operators on the open and non-discriminatory basis when permission or approval to lay of cables is considered. However, there have been comments that it is not clear how new carriers can use the property when they lay cables since each kind of property (such as land and facility) has different procedure, and that there are some cases in which applicants for laying of cables expressed their doubts about non-discriminatory and transparent nature of their treatment. These claims should be noted and considered appropriately.
      Then, in this study, the Study Group for the first time made an effort toward greater transparency through the clarification of the existing condition on the procedures to use available properties for laying of cables by telecommunications carriers and cable television operators.
      The Study Group thinks it beneficial that the entities concerned clarify the matters related to laying of cables (e.g. offices and procedures for applications, fees or its calculation method, period between the application and the reply etc.) depending on the individual situation where these matters have not been clarified yet, and publicize the results in an appropriate way. The Study Group understands that for the purpose of facilitating the cable laying, with reference to the measures for improvement stated in Section 4., the entities concerned are prepared to voluntarily implement these measures, or the Ministries concerned which consider it possible within the scope of law and order as well as necessary will request the entities concerned to voluntarily implement them. In addition, the Study Group will deal with the complaints by telecommunications carriers and cable television operators with regard to laying of cables as stated in Section 5.
It is hoped that this result of the study would be helpful to telecommunications carriers and cable television operators in their cable laying.

(3) Further Study
      It is necessary to conduct further study in the future, reviewing how the proposed measures will work and listening to the broad range of views, since "Rights of Way" has not necessarily been well known and understood by general public and the trans-sectorial study relating to "Rights of Way" such as this has never been conducted before. In fiscal year 1999, a review will be conducted with participation of the Ministries concerned.

3. Clarification of the Existing Condition

(1) Type I Telecommunications Carriers including NTT
(a) Criteria for Permission and the Present Situation of Use
      The carrier or operator who wishes to lay cables (hereinafter "Carrier A") requests the carrier who owns or controls facilities such as conduits (hereinafter "Carrier B") to check whether it is possible for Carrier A to use the facilities of the area needed. When Carrier B judges it possible, Carrier A and Carrier B discuss conditions etc. and work out a contract.
      For example, NTT, in principle, approves the applications for using facilities such as conduits when NTT has no plan to use them, and NTT has already accommodated the cables of other Type I telecommunication carriers for about 500 kilometers in NTT's facilities such as conduits and has provided cable television operators and others with the use of about 2.3 million poles. The procedures to be followed when one applies for using facilities such as conduits are prescribed in the NTT's manual, and NTT explains the terms and conditions to the applicants on application. The NTT's manual has not been published.

(b) Fees
      The fee for using NTT's poles is fixed at the same amount throughout Japan (1,600 yen per pole per year). The fee for using NTT's conduits etc. is calculated individually because the cost for construction differs from place to place.

(c) Processing Period
      Type I telecommunication carriers including NTT have not set the standard processing period because of the difficulties involved in standardizing the period required.

(d) Others
      NTT has improved the process of checking the availability of their facilities by replacing road-based survey by area-based survey and making it possible to find available routes at one request.

(2) Electricity Utility Companies
(a) Criteria for Permission and the Present Situation of Use
      With regard to the use of facilities such as poles owned by electricity utility companies, everything is left to contracts between electricity utility companies and the entity who wishes to use their facilities, other than conformity to the related laws and orders such as "Ministerial Order on Technical Criteria with regard to Electricity Facilities" which is based on the Article 39 of the Electricity Utility Business Law.
      Electricity utility companies approve almost 100 % of applications for using poles, in the absence of technical difficulties. About 7 million poles out of 20 million poles are now being provided for Type I telecommunications carriers other than NTT and subsidiaries of electricity utility companies, cable television operators etc.. Some electricity utility companies have provided pamphlets concerning the use of poles, but pamphlets have not been provided commonly by electricity utility companies nationwide.
      There are very few applications filed for use of the conduits and ducts owned by electricity utility companies. Two factors perhaps account for this. One is the fact that telecommunications carriers and cable television operators who wish to lay their cables in the conduits have to conduct excavation and filling up because these conduits rarely have direct connection with poles or household. The other is that most ducts are placed only around the line-out of the transformer substation.

(b) Fees
      Electricity utility companies calculate the fees for using and for refurnishing poles, based on the cost. The fee for using poles of electricity utility companies is about 1,700 yen per pole per year.

(c) Processing Period
      It is difficult for electricity utility companies to set the standard processing period because whether refurnishing is required depends on the conditions of existing facility.

(3) Roads
(a) Criteria for Permission
(Permission for Occupying Road)
      According to Article 32. 1. of the Road Law, in the case of laying of cables by telecommunications carriers and cable television operators, they are required to obtain permission from road authorities. According to Article 36. 2 of the Law, road authorities must give permission to the application for setting electric wires and other facilities to be installed by Type I telecommunications carriers, as long as the application meets the permission criteria for Occupying Road as prescribed in Article 33 of the Law and related ordinances.
      The Ministry of Construction has given guidance to the road authorities to give permission to the application for laying broadcasting facilities made by cable TV operators as long as it meets the same criteria for Type I telecommunications carriers.
      Because national expressways have unique features such as being used for high speed automobile traffic, careful and particular consideration should be given to safety and smoothness of traffic and security of road structure. In principle, the permission for laying of cables longitudinally on national expressways is granted only with regard to long tunnels and long bridges with no alternative for laying of cables except the national expressways concerned.

(Permission for Using Road)
      When laying cables in the air over the road or under ground of the road, except for the cases where "cable" in question is a stone monument, bronze statue, advertisement board, arch or other similar structure stated in the Road Traffic Law Article 77. 1.(2), it is not necessary to obtain permission for Using Road. However, even where the permission is not required, when constructions or works on the road are involved, according to the Article. 77. 1.(1) of the Road Traffic Law, it is necessary to obtain permission for Using Road.

(b) Fees
      The fees for Occupying Road are stipulated; in the case of designated sections of national highways in the Road Law Enforcement Regulation, and in the case of other roads in ordinances of local government authorities which manage these roads. The fees for Occupying Road are calculated based on land prices and fee rate for using national assets and are revised as necessary to maintain appropriate level. Fees are not charged for Using Road.

(c) Processing Period
      Based on the Article 6 of the Administrative Procedure Laws, road authorities determine and publish standard processing period of permission for Occupying Road. Although the processing period was about one month in the past, the Ministry of Construction has given guidance to road authorities since August this year to adopt 2-3 weeks as standard processing period in principle.
      With regard to permission for Using Road, each chief of police station determines standard processing period of permission for Using Road and publishes it. The National Police Agency has given guidance to metropolitan and prefectural police to issue official notice that each chief of police station should set standard processing period of 7 days or less in principle taking account of actual condition of each prefecture.

(d) Complaint Procedure
      If an applicant for Occupying Road or Using Road has complaint against decision over approval or disapproval, the applicant can make a motion for complaint under the Administrative Complaint Investigation Law or file a suit for revocation of the decision or for affirmation of illegality forbearance under the Administrative Case Litigation Law.

(4) Railroads and Subways
      With regard to use of facilities belonging to railroad and subway for telecommunication and cable television broadcasting, number of applications for using their facilities is very small so far compared to other businesses. Thus, each railroad operator has not established criteria for permission to deal with formatted application.
If there is an application from telecommunications carriers or cable television operators to lay their cables on facilities belonging to railroad and subway, each railroad operator will consult with the applicant and deal with it if laying of cables is possible. In fact, several cables of telecommunications carriers or cable television operators have been laid within facilities belonging to railroad and subway.

(5) Privately Owned Building
      With regard to "access to privately owned building", it would be precondition for telecommunications carriers or cable television operators to obtain rights to place facilities necessary for providing their service inside the premises of the privately owned building. The right is to be obtained through contract between telecommunications carriers or cable television operator and building owner. With regard to contract between parties, under the civil law, the decision whether they would make a contract or not as well as what kind of contract they will make, depends on free will of the parties. Thus, there is no regulation.
      In the case of comparted-owned building, it is not necessary to obtain permissions from all owners for alternation or management of common use portion. The above right can be granted to telecommunications carriers and cable television operators by decision of the assembly of the comparted-owners.

      The point of demarcation between telecommunication circuit facilities installed by Type I telecommunications carrier and the terminal facilities connected to them by a user has to be clearly designated according to the Article 49 2. (3) of the Telecommunication Business Law and the Article 3 of the Regulations for Terminal Facilities etc.
      For example, in the case of multi-dwelling unit (MDU), the device such as a protector, which has demarcation functions of facilities and which prevents mechanical malfunction caused by overload due to the thunder etc..

4. Measures for Improvement

(1) Type I Telecommunication Carrier including NTT
      With regard to laying cables to conduits, ducts and poles, Type I telecommunications carriers including NTT will clarify and publish the procedure of application, the general reasons why the request for laying of cables might not be accepted, basic conditions of contract, the period from application to response, calculating method of fees etc..

(2) Electricity Utility Companies
      With regard to laying cables to poles, the electric utility companies will clarify and publish the procedure of application, the general reasons why the request for laying of cables might not be accepted, basic conditions of contract, the period from application to response and fees.

(3) Roads
(a) Simplifying Application Procedure
      With regard to permission for Occupying and Using Road, road authorities and chiefs of police station are coordinating to enable applicants to apply for both permissions at the same time at either office.
      The Ministry of Construction will undertake a study for introducing electronic application procedure for Occupying Road, to reduce burdens of telecommunications carriers, cable television operators etc. in applying permission for Occupying Road as well as to provide basic infrastructure in order to promote "advanced information and telecommunications society".

(b) Providing Infrastructure for Use by Telecommunications Carriers and Others
      In order to facilitate telecommunications carriers and others to provide nation-wide optical fiber network, road authorities have provided Common Utility Duct as well as Common Cable Duct and will continue these efforts especially in the central part of the city. In addition, the Ministry of Construction actively provides Information Duct which accommodate optical fiber cable dedicated to road administration utilization, especially along designated sections of national highways and supports private companies to install their facilities by allowing telecommunications carriers and others to use this Information Duct.
      Also, road authorities have been publishing construction plans of roads, Common Utility Ducts, Common Cable Duct and Information Duct and have been actively publishing the information by using internet web site as necessary, and are continuing these efforts.

(c) National Expressways
      With regard to national expressways which will be newly constructed, the Ministry of Construction and Japan Highway Public Corporation will consider the ways so that Type I telecommunications carriers with required management capability other than Teleway Japan Corporation, which installed cables in conjunction with Japan Highway Public Corporation's installation of communication system for road management, and which became KDD as a result of merger this December, would also be able to lay cables for telecommunications businesses in the same way as Teleway Japan Corporation, now KDD, laid.

(4) Railways and Subways
      There are some cases that railroad companies have not fixed the sections to deal with applications for laying of cables. Thus, major railroad companies will consider voluntarily to designate such sections and to deal with applications in the uniform manner.

5. Response to Complaints

      With regard to complaints on laying of cables by telecommunications carriers or cable television operators, except the cases to be processed by procedures stated in Section 3. (3) (d), the Study Group (the Review during Japanese fiscal year 1999) will receive complaints, look into the matters needed within the scope of available cooperation from related entities and then reply to the complaint at applicants in the form of appropriately compiled results. The case will be regarded as references for the consideration of further improvement in the review during fiscal year 1999.

6. Publishing the Measures for Improvement

      By the end of fiscal year 1998, the Study Group will research the situation of the measures for improvement etc. taken by the above entities and publish the results through methods such as using internet web site.

The Study Group on "Rights of Way" will receive questions as well as opinions on this results of the study. If you have questions as well as opinions, please send them to the Second North America Division by mail, fax or e-mail. Your questions and opinions will be published with our answers. The deadline for questions and opinions is 17:00, Friday January 29, 1999. If you wish to send them by mail, postmark on or before Friday, January 29, 1999 will be valid.
Only the questions or opinions written in Japanese will be accepted. A submission from an individual should include his/her address, name, sex and age and occupation, and a submission from a corporation should include its name and address. These information will be a part of our release.

100-8919
Second North America Division,
Ministry of Foreign Affairs,
2-2-1 Kasumigaseki, Chiyoda-ku, Tokyo
Fax: +81-3-3597-8639
E-mail: bei2@mofa.go.jp