On 6 December 2022 the Product Security and Telecommunications Infrastructure Act 2022 received royal assent, with it bringing in changes to the Electronic Communications Code (the "Code"), which governs the law in the UK around telecommunications sites and infrastructure. The key changes to the Code introduced by the Act are detailed below.
Operator rights to share and upgrade apparatus
New provisions on operator sharing and upgrading of apparatus:
- an express right permitting operators to upgrade and share telecoms apparatus with other operators, along with rights for operators to access land to carry out works required for sharing and upgrading.
- rights to upgrade and share apparatus will apply to existing telecoms agreements that were created prior to the new Code coming into force on 28 December 2017. Such rights are only applicable to underground electronic communications equipment where there is no additional burden on the site provider and no adverse impact on the land.
Unresponsive site providers
A new procedure allowing operators to impose an agreement on a site provider, where unresponsive following service of repeated notices. The procedure is only applicable to situations where:
- the land does not comprise buildings, gardens, parks or recreational areas;
- the apparatus to be installed is to be over or under land and not on it; and
- a series of four notices have been served on the site provider, prescribed timescales have been followed and the site provider has not responded.
A site provider's simple response at any stage would be sufficient to halt this procedure.
Alternative dispute resolution ("ADR")
Stopping short of mandatory ADR, new provisions to encourage both sides to consider reaching agreements through ADR rather than through the relevant Tribunal. The provisions include:
- A duty on operators to make site providers aware of ADR and the consequences of not engaging;
- An operator must consider ADR to reach agreement, before proceeding to tribunal enforcement;
- Either party may contact the other party at any time to say they wish to engage with ADR;
- Any unreasonable refusal by either party to engage in ADR to be considered in tribunal costs awards.
Rental Valuations in England & Wales
The Act seeks to correct an apparent mischief in the Code, by regularising the position between rental valuations applied under the 1954 Act renewal process for a 1954 Act protected "subsisting agreement" and the rent which would be determined under the Code, by introducing into the 1954 Act an obligation on the Tribunal to apply a "no network" principle when assessing the rent and interim rent.
OFCOM are required to include in their code of practice, guidance on how operators should handle complaints.
Refusal of code rights on grounds of national security
Any Tribunal must refuse an application by an operator for Code rights if the Secretary of State confirms that doing so is likely to prejudice national security, defence or law enforcement.
New operator powers to fly lines from apparatus belonging to another operator; interim arrangements pending a decision on the granting of Code rights; and, additional rights of network providers in relation to infrastructure.
The provisions of the Act relating to Code rights to share apparatus and the power to fly lines came into force on 7 February 2023. Provisions relating to upgrading and sharing for existing apparatus will come into force on 17 April 2023.
Changes not adopted in the Act
Interestingly, provisions in the original bill clarifying the position where an operator is exclusively occupying the land and wishes to obtain Code rights were dropped during the legislative process.
The point had been answered in the 2022 Supreme Court decision of Cornerstone Telecommunications Infrastructure Ltd v. Compton Beauchamp Estates Ltd, where it was held that an operator exclusively occupying land and wishing to obtain Code rights would be able to obtain Code rights from whoever would be able to grant those rights, if the operator was not in occupation of the land.
However, might the dropping of this provision from the Act prove to be a missed opportunity to codify the law?
Other legislative changes
Importantly for fixed-line operators, regulations accompanying the Telecommunications Infrastructure (Leasehold Property) Act 2021 have now come into force in England & Wales, and will come into force in Scotland on 1 July 2023.
The legislation expands the rights of operators to gain access to a building which contains two or more separate homes (e.g. a block of flats) without the landlord's permission, in a situation where the landlord has failed to respond to multiple written requests for access.
If you are an operator, site provider or landowner with concerns or queries about the Code or, how the recent changes in the law may impact you or your business, please do not hesitate to get in touch with our Real Estate Disputes team or your usual Brodies contact.