The Electronic Communications Code ("Code") came into force on 28 December 2017, with the aim of improving connectivity across the UK (rollout of 5G etc.) by making the framework for telecommunications operators cheaper and more efficient. Following its implementation, there have been a series of disputes between operators and landowners around the workings of the Code. As a result, on 27 January 2021, the government announced a consultation on changes to the Code ("Consultation").
The Consultation seeks views from landowners, site providers, operators, internet service providers, consumers and representative organisations, on whether changes to the Code are necessary to help the delivery of telecommunications coverage and connectivity to both consumers and business.
Problems the Consultation hopes to address
The Consultation is seeking to address three problem areas:
1. Issues relating to obtaining and using Code agreements;
2. Rights to upgrade and share equipment; and
3. Difficulties relating to the renewal of expired agreements.
The government expressly states (paragraph 2.13 of the Consultation) that it will not be revisiting the valuation framework within the Code.
Obtaining and using Code agreements
The conferral of Code rights and requirements for Code agreements are governed by Part 2 of the Code.
The Consultation identifies a number of problems, stating that once a Code agreement is completed (whether by mutual agreement or imposed by the court), there is no provision under the Code for either party to apply to court for new or different terms until the end of the agreement period, failures to complete agreements quickly makes improving connectivity difficult and completed agreements are not sufficiently flexible to accommodate changes. The Consultation notes that protracted disputes are leading to delays in the rollout of better connectivity.
It seeks to identify where changes can be made to improve the speed and collaboration of negotiations, ensure best practice, consider alternative dispute resolution and how to proactively deal with failures by landowners to respond to requests from operators for Code rights.
Rights to upgrade and share
An operator's right to upgrade and share is governed by Part 3 of the Code. Specifically, where certain conditions are met, paragraph 17 of the Code confers automatic rights permitting operators to upgrade their own apparatus and share use of it with other operators.
The Consultation highlights that an operator's ability to upgrade its equipment and share apparatus with other operators – without the need to obtain additional Code rights on each occasion – improves connectivity by reducing costs and increasing the number of operators in a given area.
The Consultation hopes to address identifiable problems with paragraph 17, which centre around how these automatic rights undermine the relationship between operators and landowners, as well as occupiers of the land such as sitting operators unable to gain the benefits of the Code.
Changes are proposed by:
- Reviewing when automatic rights under paragraph 17 should be available and how they might be clarified.
- Seeking to give certainty to operators who do not meet the conditions of paragraph 17 to obtain automatic rights.
- Considering the introduction of retrospective rights to share/upgrade apparatus installed prior to the implementation of the Code.
Renewal of expired agreements
Governance of agreements is dealt with by Part 5 of the Code.
The Consultation identifies a number of mischiefs in the Code, relating to termination and renewal of Code agreements, stating that Part 5 does not apply to all expired agreements, a perceived lack of clarity and consistency about the application of Part 5, as well as disputes about Part 5 taking longer to reach a tribunal hearing than cases dealing with other parts of the Code.
It seeks to address these problems with changes to give certainty about what happens when Code agreements expire, encouragement of alternative dispute resolution, a legislative framework that encourages negotiation and which imposes measures when the parties fail to reach agreement.
The Consultation runs for 8 weeks and will close on 24 March 2021. A copy of it and details of how to respond, can be found here. All stakeholders should be encouraged to take part.
Brodies' telecommunications group covers the whole of the UK, acting for operators and landowners in negotiating and resolving matters relating to the Code. If you have any concerns or questions about telecommunications, the Code or the Consultation, how it may impact you or your business and what to do to manage the risk, please do not hesitate to get in touch with one of our telecommunications specialists or your usual Brodies' contact.
