The UK Government is consulting on changes to the Electronic Communications Code. The Code is the legal framework underpinning rights to install and keep electronic communications apparatus on public and private land.

The Government intended the most recent version of the Code, which came into effect in December 2017, to assist with achieving nationwide rollout of ultra fast gigabit capable broadband and 5G networks.

From the feedback that the Government has received, however, it appears that further changes to the Code may be needed to ensure that the aims of the Government are realised.  Three main problem areas have been identified:

  • Issues relating to obtaining and using Code agreements;
  • Rights to upgrade and share; and
  • Difficulties relating to the renewal of expired agreements.

The consultation will set out a range of options to address these areas.

  1. Issues relating to obtaining and using Code agreements;

Operators have encountered delays in obtaining Code agreements which make it difficult to provide  telecommunications services quickly. The longer it takes for agreements to be completed, the longer it takes for apparatus to be installed or upgraded. The government is therefore considering the following options:

  • a statutory process for complaints about non-compliance with the Ofcom Code of Practice;
  • the introduction of an alternative dispute resolution scheme;
  • introducing an alternative procedure for Code rights to be obtained if an operator can demonstrate that reasonable efforts have been made to secure an agreement, but the occupier or landowner has failed to respond to repeated requests;
  • making changes to the definition of an “occupier” or changing who is able to confer Code rights where an operator is in occupation of a site; and
  • allowing a party to seek, from a court, modified terms or additional rights before an agreement expires in certain situations. The court could be required to take into account a public benefit test similar to that used for the imposition of Code rights in deciding if modified terms should be imposed.
  1. Rights to upgrade and share

The Code includes automatic rights for Code operators to upgrade their apparatus and share use of it with other Code operators, subject to satisfaction of certain conditions. The Government reports, however, that disagreements and uncertainty about those automatic rights are also delaying negotiations and impeding the upgrade and sharing of apparatus. Moreover, the automatic rights only exist in the Code from December 2017, which limits the ability to share use of, or upgrade, pre-existing networks.

The changes considered include:

  • making it clear that a court can impose rights to upgrade and share apparatus that are separate to the automatic rights permitted under paragraph 17 of the Code and that may have an adverse impact, or impose an additional burden on, the site provider; and
  • introducing retrospective rights to share and upgrade apparatus installed prior to the 2017 Code.
  1. Difficulties relating to the renewal of expired agreements

The Government believes that there is a lack of clarity about the renewal of Code agreements and a concern that negotiations for renewal of agreements have been slow.

The consultation proposes that:

  • The renewal provisions contained in Part 5 of the Code apply to all Code agreements (including those entered into before the 2017 Code came into effect) so that, unless new terms have been agreed by the parties, the operator’s rights should continue to be exercisable and the site provider should remain entitled to payment in accordance with the expired agreement, but with either party being able to seek a modified agreement or the site provider being able to seek termination of the agreement under Part 5;
  • all Code disputes to be heard and decided on within 6 months of the date the application to a court is made (including disagreements over the renewal of Code rights); and
  • a process is introduced that enables site providers or operators to request an interim order in relation to a request a renewal agreement and where a renewal agreement is subsequently imposed, permitting the court to backdate the financial terms of that agreement to the date that the request for an interim order was made.

Next steps

The closing date for responses to the consultation is 24 March 2021. The Government will then consider the responses received and provide a consultation response outlining any proposed legislative changes.

A copy of the Consultation document can be found here.