The UK government has announced plans to fine-tune the 2017 Electronic Communications Code “as soon as Parliamentary time allows”.
In January 2021, the government launched a consultation, “Access to Land: changes to the Electronic Communication Code” to look at how the new Code was operating in practice. It ran until the end of March and sought views on the main areas presenting hurdles to the UK’s commitment to improving its digital infrastructure and connectivity for all.
The framework of the Code enables registered telecoms operators to install and maintain telecoms equipment on private land, whether by consent or acquiring rights through applying to the Upper Tribunal for a Code agreement. These statutory Code rights are justified on the basis that everyone should have access to a choice of digital communications networks. Good connectivity has become even more important since the COVID-19 pandemic, but it requires the physical infrastructure to be in place to offer those networks.
Whilst the 2017 Code addressed some fundamental issues with its poorly-drafted predecessor, operators have reported delays and increased costs in acquiring the desired Code rights from site providers, who are often reluctant to grant them voluntarily. This is often aggravated by the lengthy and potentially expensive process of removing the operator from the land for redevelopment purposes, and the substantially lower rents which are payable to site providers as compared with the previous Code. Unfortunately for site providers, the statutory valuation scheme which results in those lower rents was not on the table for consideration under the consultation. Instead, the government sought views on three areas:
1. Obtaining and using Code agreements
2. Rights to upgrade and share apparatus
3. Expired Agreements
The perceived hurdles and the Government’s proposals to overcome them are summarised below:
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Hurdle
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Proposal
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Comment
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Lack of engagement and collaboration from both site providers and operators
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Introduce changes to OFCOM’s Code of Practice to encourage the use of Alternative Dispute Resolution (“ADR”), including:
1. Duty for operators to consider ADR before making any application to court
2. Require courts to take account of any unreasonable refusal to engage in ADR when awarding costs
These changes will apply to applications for new Code agreements, as well as negotiations regarding the renewal or termination of existing agreements.
Amendments are also proposed to the Code of Practice to deal with complaints handling and to impose statutory requirements on operators to have a formal complaints procedure in place.
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The government stopped short of making the Code of Practice directly enforceable by statute, as it is intended to set out guidance for best practice and not specific requirements.
It also decided against a specific fast track procedure for acquisition of Code rights and considered that suitable mechanisms were already in place for timely resolution of requests for new Code rights (the courts have a duty to determine these within 6 months, with scope for an operator to request prioritisation).
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Non-responsive/ non-identifiable site providers
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Temporary rights (of up to 6 years) for an operator after serving no less than four notices on an unresponsive site provider. If the site provider comes forward at any point before the rights are granted, the procedure ceases to apply.
Regulations to set out the types of land that the non-responsive procedure may be used for, the procedural steps to be followed and the evidence to be presented to the court.
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This is based on the framework in the new Telecommunications Infrastructure (Leasehold Property) Act 2021, where operators can acquire rights against an unresponsive landlord of a multi-let building such as a block of flats. It is designed to reduce the costs and delay of rolling out infrastructure to a wider category of properties where an operator is dealing with a non-responsive party.
A separate consultation ran between June and August this year seeking views on the terms which will accompany the interim Code rights granted under this Act and we await the government’s response.
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Operators in occupation under expired Code agreements granted under the old Code are shut out of the new Code
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Amendments to the Code to provide that where an operator is already in occupation, it can still acquire Code rights from the site provider.
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The Supreme Court is also due to consider this issue in a case coming to appeal in February 2022. It arises due to the drafting of the Code and the requirement for an operator to seek Code rights from the occupier of land. If they are already in occupation under an expired agreement then they are not eligible to use the transitional provisions in Part 5 of the Code, but also cannot grant themselves a new Code agreement.
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Automatic rights to share and upgrade apparatus are unclear
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No changes to upgrading rights, but amendment to the Code to include a specific Code right for an operator to share his installed apparatus with others.
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Any additional rights needed to give effect to the sharing right (such as rights of access) are to be left for negotiation between the parties or for the court to impose.
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Automatic sharing and upgrading rights not retrospective for agreements granted under old Code
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Restricted right for upgrading and sharing where the apparatus is under land and there is no adverse impact on the land or burden on anyone who has an interest in it. The right will be subject to detailed notice conditions.
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Approximately 80% of fixed networks were installed under the old Code, so this will assist operators where no express upgrading or sharing rights in their existing agreements.
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Lengthy delays to renewal disputes
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All disputes can be started in the First Tier or the Upper Tribunal.
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This aims to evenly distribute cases and assist more straightforward cases to be dealt with quicker.
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Next steps
• As always, the detail of these proposed changes remains to be seen once the draft bill is published and it will require careful scrutiny in due course.
• It will also be interesting to see how the Supreme Court addresses the occupier issue in the Spring of 2022 in light of the government’s proposals to change the Code in this regard.
Authored by Shanna Davison.
