In January this year, the government launched a consultation and sought views from industry on a number of issues relating to the implementation of the (new) Telecoms Code, which came into force at the end of 2017. The consultation asked respondents to comment on a range of issues, including, obtaining and using Code agreements, rights to upgrade and share equipment and difficulties encountered in the renewal of expired agreements.

The government has now given its response to the consultation and published draft primary legislation Product and Security and Telecommunications Infrastructure Bill to make these changes.

As a result of the consultation, the government does not intend to make reforms to Code enforcement powers or confer powers on courts to modify ongoing Code agreements. Further, the automatic upgrading/sharing powers permitted under paragraph 17 of the Code will remain the same and, of those powers not automatically permitted under paragraph 17, the current position on upgrading will not change (sharing powers as a Code power is are dealt with below).

For more information about the consultation, please see our previous blog here

Key changes to the Code

1. Unresponsive site provider

- New procedure for the operator to follow, involving an operator issuing 3 further notices.

- If the operator follows that procedure and the occupier still fails to respond:

- The operator will be able to apply to the First-tier Tribunal for Code rights to be imposed for a maximum of 6 years.

- If, at any point before an order is made, the occupier contacts the operator/ court, the operator will no longer be able to use this procedure and will have to obtain/apply for Code rights in the usual way.

- If the occupier remains unresponsive and Code rights are imposed by the courts, the occupier will still be able to apply to the courts for compensation at a later date, if the exercise of those rights by the operator causes any loss or damage.

- Government is also considering the ability to expand the types of land that the non-responsive procedure can be used for, to specify additional procedural steps and evidence provided, and the terms of Code agreements created this way.

    2. Issues with in-situ operators

    If an operator or operators are exclusively occupying the land, the operator will 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.

      3. Sharing powers in excess of automatic rights under paragraph 17 of the Code

      - Changes are to be made to paragraph 3 of the Code, to make it clear that sharing is a distinct Code right.

      - Only available to operators who own the apparatus in question.

      - An operator granted a right to share their apparatus not going to be automatically able to effectively share their Code rights with other operators, although the government acknowledges that site providers may agree this.

        4. Rights for fixed-line operators

        - An automatic right for fixed-line operators to upgrade and share apparatus (excluded from paragraph 17), regardless of when it was installed and, for pre-29 December 2003 apparatus, regardless of whether an agreement exists, providing the following specific conditions are satisfied:

        - The apparatus must be situated under land

        - Any activity required to upgrade or share the apparatus can be carried out without accessing private land, unless an agreement allowing such access is already in place; and

        - The upgrading and sharing will have no adverse impact on the land and no burden (affecting their enjoyment of the land, causes loss, damage or expense) on anyone who has an interest in the land.

        - If access is required, an operator must first request access and obtain a Code agreement before doing so, paragraph 17 rights automatically become available and allow upgrading and sharing activity within the scope of paragraph 17.

        - Operator to place a notice on a conspicuous object on any land where works will be taking place at least 21 days before the upgrading or sharing activity takes place.

          5. Renewal of Code agreements

          - Where an operator is in sole occupation of land without continuing Code rights it will be able to seek a new Code agreement

          - The Landlord and Tenant Act 1954 (England & Wales) and, for Northern Ireland, the Business Tenancies Order (Northern Ireland) 1996 will be amended, so that Code agreements fall within the scope of the Code.

          - In England and Wales, jurisdiction for all Code agreements to be transferred to the First-tier and Upper Tribunal.

            Other changes

            6. Alternative dispute resolution (ADR) encouraged (but not mandatory)

            - Operators will be duty-bound to consider ADR before making an application to the courts, make site providers aware that ADR is available, and any unreasonable refusal to engage in ADR will be taken into account in the issue of costs

            - Measures to apply to new agreements and negotiations about the renewal or termination of expired Code agreements.

              7. Complaints' handling

              - Ofcom will be required to include operators’ complaints handling in the Code of Practice.

              - Operators are to have a complaints procedure in place.

                8. Court procedures and timescales for determination

                - In England and Wales, parties to be permitted to commence in either the Upper Tribunal or the First-tier Tribunal.

                - Time-limits for determining disputes are to be amended.

                  10. Interim arrangements for Code agreement renewals

                  - Either party to be able to apply for an interim order pending the resolution of a dispute.

                  - Interim orders may modify any terms of the expired agreement.

                    If you have any concerns or questions about these proposed changes to the Telecoms Code and how it may impact you or your business, please do not hesitate to get in touch with one of our telecoms' experts or your usual Brodies' contact.

                    Contributors

                    Lucie Barnes

                    Partner

                    Scott Logan

                    Legal Director