On the 29th October 2018, the Department for Digital, Culture, Media and Sports published a consultation that focuses on addressing the issue of compelling landlords to consider the telecoms connectivity of their tenants and allowing Operators to install infrastructure where landlords are unresponsive.
The consultation is specifically seeking views on proposals to support residential and commercial tenants that want to receive gigabit-capable connections. This includes ways to improve the response rate of landlords to requests for access from Operators and the options available to Operators when a landlord fails to respond.
At the moment it would appear that Operators are reluctant to take the issue to the Upper Tribunal (although some cases under the New Electronic Communications Code are starting to come through) as they want to keep landlords on their side for commercial reasons and the process of going to the Upper Tribunal can take considerable time (an estimated 7-12 months).
The consultation states that for the implementation of access or wayleave agreements, Operators have informed the government that a high number of landlords (particularly in relation to multi-dwellings) are not responding to requests for access. The result has been that as the Operators are prevented from providing services, they have removed the properties from their build plans altogether. This is due to the additional administrative burden in chasing up unresponsive landlords which is not cost effective for the deployment of new infrastructure.
Essentially the proposals seek to amend the New Code using primary legislation to encourage landlords to engage with operators where a tenant requests a service. The intention is to amend the New Code so that an obligation is placed on landlords to facilitate access once they have been suitably notified by an Operator or where a service request is made by a tenant. Where a landlord is absent or unidentifiable, access may be granted via a magistrates’ court issued warrant of entry which is similar to powers that already exist in relation to gas, water and electricity.
This court enabled access is intended to be temporary, allowing the Operators to install and maintain electronic communications apparatus and will remain valid until such time as the landlord engages with the Operator and a negotiated voluntary agreement is put in place (or, presumably, one is imposed under the existing provisions of the New Code). The proposal states that the Operators will be able to apply 2 months after first contacting the Landlord. There will also be stipulations on the mode and frequency of how the Operator has contacted the Landlord prior to applying to the Magistrates’ Court.
The consultation closes on 21 December 2018.
Ben Rogers (Legal Director) and Rob Shaw (Senior Associate)
The authors would like to acknowledge Danny Lavender, trainee solicitor at DLA Piper UK LLP, for his contribution to this article.