The Electronic Communication Code (“ECC”) confers rights on telecommunications providers in regard to the maintenance and installation of electronic communication networks.
Recently, the ECC has undergone changes to both its provisions and supporting documentation. The two changes that will be considered in this article are:
- The Ofcom Consolation on the ECC’s subordinate Code of Practice
- The amendments introduced by the Product Security and Infrastructure Act 2022 coming into force on November 7 2023.
Consultation on Code of Practice
What is the Code of Practice?
The existence of the ECC, is now reasonably well known in legal and surveying circles. What is less well known, particularly on the landowner side, is that ECC is supported by a Code of Practice that Ofcom was required to publish as part of the Code when it was reformed in late 2017 (“COP”).
The purpose of the COP is stated to be “to complement the [ECC] by suggesting best practice to facilitate positive and productive engagement between all parties across a range of issues, roles and responsibilities.”.
Ofcom has decided that the COP should now be reviewed and updated and has published a consultation setting out Ofcom’s proposals for amending the COP.
The Consultation is open for 8 weeks, closing at 5pm on 7 November 2023. There is a response form included on Ofcom’s website that can be used to comment on the changes.
The intention of the consultation is to align the ECC with the latest legislative changes as the Telecommunications Infrastructure (Leasehold Property) Act 2021 and the Product Security and Telecommunications Infrastructure Act 2022 (“PSTIA”) have both amended the ECC recently. The Consultation proposes a range of amendments to the COP – some minor textual amendments clarifying existing provisions and other more substantive changes.
One of the key proposed changes to the COP is amendments to highlight and encourage the use of Alternative Dispute Resolution (“ADR”) schemes by parties (instead of or at least before a dispute is referred to the Upper Tribunal (Lands Chamber)) and the potential consequences of unreasonably refusing to engage in ADR. Using ADR also has the potential advantages of being quicker and cheaper than using the Tribunal system, albeit the proposed amendments recognise that ADR will not always be appropriate.
Amendments in force from 7 November 2023
As mentioned, the PSTIA amends the ECC. The amendments made by the PSTIA are being introduced incrementally, with some due to come into force on 7 November 2023.
The amendments to the ECC are:
- Paragraph 35 – this deals with interim arrangements that can be made, either between a site provider and operator themselves or by the Upper Tribunal, where a party has applied to the Tribunal for the renewal or termination of an existing code agreement. The interim arrangement can make changes to any of the terms of the existing code agreement. This was not previously possible.
- Paragraphs 20, 32, 33 and 96 – where amendments are being made to encourage the use of alternative dispute resolution:
- Certain notices prescribed by the ECC will now have to contain information about the availability of ADR and the consequences of refusing to engage in ADR;
- Operators are required to consider, if it is reasonably practicable to do so, the use of ADR before making applications to the Upper Tribunal; and
- The Upper Tribunal is now required to have regard to any unreasonable refusal by a party to engage in ADR when making a costs order.