The Digital Economy Act finally became law prior to the dissolution of parliament at the start of the general election campaign. The Act contains within its pages the new Electronic Communications Code, which has been awaited for years and which many argue is essential to ensure the law is equipped to deal with advances in technology.

However, not all of Act’s provisions have come into force immediately and indeed, the new Code will only start to operate once it is brought into effect by regulations made by the Secretary of State. Some regulations (The Digital Economy Act 2017 (Commencement) Regulations 2017) have recently been made, but these do not bring into force the new Code.

In that respect, our recent enquires with the Department for Culture, Media & Sport as to when the Code will become law elicited these responses:

“There are a number of factors to consider, including supporting regulations, Codes of Practice etc. We are considering all aspects of implementation in order to achieve the most swift and appropriate approach, and will update stakeholders on commencement in due course.

We are … bringing into force measures to improve digital connectivity across the UK, starting the implementation of the new electronic communications code to assist operators to develop new infrastructure…in summary we have commenced the code for the purpose of making regulations over the autumn. Once we have those in place full commencement will follow.”

Given the turmoil thrown up by the election result and the more immediate issues the government is facing, including Brexit, the new Code could still be some way off, meaning that the existing Code continues to regulate arrangements for the installation of telecoms equipment.

The new Code introduces (whenever it finally becomes law), inter alia:

  • Rents/compensation: it is thought that the new Code is likely to decrease the rents/compensation received by landowners from telecoms operators as the rents/compensation will be based on the land’s value to the landowner not the operator.
  • Site sharing and assigning: operators will have rights to assign agreements and to share or upgrade apparatus without requiring the consent of the landowner, thus reducing the landowner’s control.
  • Security of tenure: the new Code contains provisions to ensure there is no overlap between the security of tenure rights granted to business occupiers by the Landlord and Tenant Act 1954 and similar protection that telecoms operators can claim under the Code.
  • Dispute resolution: the new Code can provide for a more specific dispute resolution procedure where the parties cannot agree terms.
  • Conferral of Code rights: An operator will be able to apply to the Court for the grant of interim code rights for a certain period of time or until a certain event takes place.
  • Termination: new, more lengthy, notice procedures for terminating Code agreements.
  • Retrospectivity: existing agreements will not be covered by the new Code.

We will report further once the new Code finally comes into force…..

Rob Shaw, Senior Associate and Ben Rogers, Legal Director