Consultation on the Electronic Communications Code – What’s Changing?

This week the government published its response to the consultation on legislative changes to the Electronic Communications Code (the ‘2017 Code’), which was launched by the Department for Digital, Culture Media & Sport in the first quarter of 2021.

The 2017 Code was introduced to support and enhance the process for delivery of telecommunications infrastructure throughout the UK. As such, it is unsurprisingly ‘operator friendly’ compared to the old Code. The proposals detailed in the government response seek to clarify areas of difficulty that have been identified by stakeholders since the introduction of the 2017 Code, namely (1) obtaining and using Code agreements; (2) sharing and upgrading; and (3) expired agreements. Unfortunately for site providers, the ‘no-network’ valuation methodology is outside the scope of the consultation, and many of the proposals appear to extend the rights currently enjoyed by operators under the 2017 Code. However, while the purpose of the legislation is to assist with meeting the nationwide gigabit-capable coverage targets it will be interesting to see how the government’s proposals are incorporated into the legislation in a manner that also protects the private property rights of site providers.

At a glance, the key proposals include:

1. Obtaining and using Code agreements

• Alternative dispute resolution should be available (but not mandatory) to determine disputes that are not concerned with the legal interpretation of the Code. Operators will have a duty to consider ADR before applying to the courts in relation to new agreements, as well as renewals and termination.
• Operators should have a complaints procedure in place. Ofcom will be charged with including in its Code of Practice matters concerning operators’ handling of complaints regarding their conduct under Code agreements and negotiations, and Ofcom should have enforcement powers if an operator has breached its complaints handling requirements.
• There should be no fast-track court procedures for Code cases.
• The Telecommunications Infrastructure (Leasehold Property) Act 2021 addressed the issue with non-responsive landlords of multi-let buildings where a tenant has requested connection. A similar process should be included in the Code so that where an operator does not receive a response from a site provider then a process will be followed (including the issue of further notices) before the operator can apply to the Tribunal for Code rights, which can then be imposed for a maximum of 6 years. Powers should be given to the Secretary of State to make regulations in connection with the process and requirements.
• The definition of ‘occupier’ should be changed so that if an operator is the ‘occupier’ as defined in the Code, then it should be able to obtain Code rights from whoever would be able to grant the rights if the operator was not in occupation i.e. the landowner or whoever has rights to control the use of the land otherwise.

2. Rights to upgrade and share apparatus

• Existing rights on upgrading and sharing to remain, and no prescriptive conditions to be added – only the existing ‘no adverse impact or no more than minimal adverse impact on appearance’ and ‘no additional burden on site provider’ to remain.
• Upgrading is listed as specific a Code right under paragraph 3, but sharing is not. Paragraph 3 should include a ‘bare’ right to share. This means that any ancillary rights necessary to exercise the right to share (such as terms around access of the additional operator/s etc.) will need to be negotiated between the parties or imposed by the courts.
• Automatic rights to share and upgrade, which apply to 2017 Code agreements, should apply to pre 2017 Code agreements and existing apparatus provided that there is no material impact on the site provider and subject to other conditions so that the right is more limited than its application to 2017 Code agreements.

3. Expired agreements
   • Part 5 of the 2017 Code deals with renewal and termination of expired Code agreements, but it only applies to ‘subsisting agreements’. This excludes, for example, 1954 Act leases and instances where there is no evidence of continuing Code rights.  There should be amendments to the Landlord and Tenant Act 1954 to ensure that the renewal and termination framework aligns more closely with Part 5 and enable the Upper Tribunal to hear disputes relating to agreements governed by the 1954 Act.  Where there is no evidence of continuing Code rights, then operators should be able to seek new Code agreements in the usual manner under Part 4 of the Code
   • All renewal disputes should be able to be referred directly to the First Tier or Upper Tribunal and the Secretary of State should amend the time limits around how long a court has to determine a dispute.
   • Whereas only site providers can currently apply to the court for an interim order determining the amount of rent an operator should pay whilst the parties negotiate a renewal agreement, this right should also be afforded to operators and the right to apply for interim orders should be extended beyond financial terms – it should be for modification of any terms to apply in the interim following expiry of an agreement.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email enquiries@sharpepritchard.co.uk.