The Electronic Communications Code ("the Code") gives designated providers of electronic communications networks and systems of infrastructure ("Operators") statutory powers to install and maintain their networks and systems on, under and over land.
Ofcom first published a Code of Practice for Operators taking access to private land in 2017 (accessible here). Since then, there have been a number of further legislative changes to the Electronic Communications Code (see our article on the Product Security and Telecommunications Infrastructure Act 2022 ("PSTIA 2022")) and the establishment of the National Connectivity Alliance ("NCA"), an alliance of telecommunications providers, infrastructure providers, landowners and their professional advisers who collaborate on areas of mutual interest. Ofcom recently elected to review the Code of Practice and invited the NCA to contribute to its review by proposing a set of draft revisions to the Code of Practice.
Following consideration of the NCA's recommendations, Ofcom are now consulting on proposed amendments to the Code of Practice. The consultation which closed on 7 November, can be accessed here.
The key amendments proposed by Ofcom include:-
Replace "Landowner" and "Occupier" with "Site Provider"
This change is intended to highlight that the Code of Practice applies to both property owners and occupiers, which should assist where the legal owner of the property is not on site.
Contact information
Ofcom intends to amend the sections of the Code of Practice relating to communication between Operators and Site Providers to ensure that Site Providers are given contact details of the relevant Operator and anyone working on their behalf, to encourage more effective communication.
Professional fees
Operators are to be directed to provide information to Site Providers as to when their professional fees will be met by the Operator. This change is aimed at ensuring that Site Providers have an awareness of what professional fees, if any, they will be liable to meet in place of the Operator.
Requests for access
New provisions outlining the process for Operators requesting access are anticipated, with a view to preventing the need for Operators having to apply for court orders for access. Ofcom has also highlighted the importance of Site Providers responding to such requests and the proposed new provisions are intended to encourage engagement between Operators and Site Providers at an early stage.
Sharing and upgrading apparatus
A new section is to be added to the Code of Practice covering the right of Operators to share and upgrade their apparatus. This has proven to be a contentious area between Operators and Site Providers. The proposed amendments will also pick up on further legislative changes to Operators' powers to share and upgrade equipment under the Code. It is hoped that clarity on this issue will remove ambiguities around sharing/upgrading for both Site Providers and Operators.
Alternative Dispute Resolution ("ADR")
The proposed amendments will pick up changes to the ADR provisions under the Code as contained in the PSTIA 2022. The intention behind the amendments has been to set out the behaviours of the parties, as well as providing an overview of what ADR is and when parties may wish to consider it.
The ADR provisions in the PTSIA 2022 come into force on 7 November. These provisions will make it mandatory for Operators to mention ADR in their notices. Where either party is unwilling to participate in ADR, this may have a knock on effect when a court is considering any award of expenses.
Ofcom will review all submitted responses once the consultation has closed and will then publish a final statement and finalised versions of the Code of Practice on their website.
Contributors
Senior Solicitor
Partner
