Since the Implementation of the Code in 28 December 2017, two further pieces of primary legislation have been introduced to amend the provisions of the Code:

  • The Telecommunications Infrastructure (Leasehold Property) Act 2021 (TILPA) received Royal Assent on 15 March 2021
  • The Product Security and Telecommunications Infrastructure Act 2022 (PSTIA) received Royal Assent on 6 December 2022

However, implementation of this legislation has been gradual.

2023 also saw the introduction of the Electronic Communications Code (Jurisdiction) (Amendment) Regulations 2023 (SI 2023/1220) (ECCJAR).

In this note, we summarise what changes to the Code have been made by this legislation and what further changes are to come.

Original Code position

Modification

Consequences

When modification took/will take effect

Unresponsive Occupier process – Connected Leased premises

(TILPA)
  • No separate process under the Code to impose agreements on unresponsive land owners.
  • Operators can impose rights on an unresponsive land owner if a prescribed notice process is followed.
  • Allows operators to obtain short-term rights from an unresponsive landlord of multi-dwelling units (MDUs).
  • Applies where a tenant of an MDU requests an operator's services and the owner of the wider premises to not respond to requests to grant.
  • Will assist fixed line broadband providers in installing infrastructure to service MDU tenants.

26 December 2022 (England and Wales)

1 July 2023 (Scotland)

Clarification of Sharing Rights

(s. 57 PSTIA)
  • Operators have a right to share apparatus, which can be subject to only limited restrictions.
  • The right to share was not a standalone Code right.
  • Code rights could only be conferred on an operator by an agreement between the occupier of the land and the operator.
  • Introduction of additional standalone Code Rights to share apparatus, carry out works and to access land in connection with sharing.
  • The statutory purpose includes operators enabling the provision of other operator's networks.
  • Expressly confirms that the limitations on who can grant Code rights does not prevent an operator under a Code Agreement permitting a second operator who is sharing apparatus to exercise rights under that Code Agreement.
  • Largely confirms matters already settled by case law. Nonetheless these changes provide helpful clarification to operators, particularly Passive Infrastructure Sharers, whose business model relies on a wide-ranging ability to share apparatus.

7 February 2023

Power to Fly lines from apparatus kept by another operator

(s. 60 PSTIA)
  • Operators have a right (subject to restrictions) to fly lines over land which is adjacent to or in the vicinity of that operator's apparatus.
  • Operators have the right to fly lines from another operator's apparatus (with that operator's agreement).
  • Operators have the right to upgrade or carry out works to the apparatus for the purposes of flying lines from this apparatus, providing this does not have an adverse impact on the land or appearance of the apparatus and does not cause loss, damage or expense to the land owner.
  • Clarifies the extent of an operator's right to fly lines from apparatus, particularly where this apparatus if being shared between operators.

7 February 2023

Upgrading and Sharing of pre-Code underground apparatus

(s. 58 - 59 PSTIA)
  • The automatic right to share and upgrade apparatus does not apply to agreements pre-dating the Code.
  • The contractual controls on sharing and upgrading which are in place in subsisting agreements can still be enforced by site providers.
  • Limited automatic rights to upgrade and share apparatus to apply retrospectively to subsisting pre-Code agreements
  • Limited to underground apparatus.
  • Limited to where no adverse impact on the land and will impose no burden on the other party to the agreement.
  • Requires a subsisting agreement unless the apparatus was installed before 29 December 2003.
  • Specific notice procedure operators must follow.
  • Should assist fixed line operators in entering into sharing rights under pre-existing apparatus.
  • Owners and managers of land subject to pre-Code agreements concerning underground apparatus should be on the alert for such notices.

17 April 2023

National Security Grounds

(s. 66 PSTIA)
  • No specific national security ground to object to imposition of Code agreement
  • Secretary of State can issue certificate stating that the grant of an agreement would be prejudicial to national security, defence or law enforcement.
  • Where certificate issued, Tribunal is unable to impose and agreement granting full, temporary or interim Code rights.
  • Whilst it is likely that an operator seeking a Code agreement prejudicial to national security would be defeated by the Paragraph 21 test, the addition of a specific national security ground is sensible.
  • It remains to be seen how often the required certificate will be sought from the Secretary of State or in what situations it might be issued.

26 April 2023

Changes to expired Code Agreements pending application

(s. 68 PSTIA)
  • Whilst awaiting the outcome of applications to end, renew or modify an expired Code Agreement, the site provider could ask the Tribunal to determine the consideration payable pending the determination of the application.
  • No modification of other terms pending the outcome of the proceedings.
  • The Tribunal will be able to modify consideration or other terms of the agreement at the request of the operator or site provider pending the outcome of the proceedings.
  • When doing so the Tribunal must have regard to all the circumstances of the case.
  • Whilst this provision allows both operators and site providers to seek interim modifications to the terms of agreements, it is anticipated that operators are more likely to make use of this mechanism.
  • Will allow operators to seek to impose their current standard terms on site providers pending the determination of proceedings.
  • Site providers resisting modified terms proposed by operators should be aware that they may be subject to these terms pending the outcome of proceedings.

7 November 2023

Use of Alternative Dispute Resolution (ADR)

(s. 69 PSTIA)
  • There were no specific provisions within the Code to encourage the use of Alternative Dispute Resolution (ADR).
  • The Tribunal has shown its willingness to impose costs sanctions on parties which it perceived to have behaved unreasonably in proceedings..
  • Operators required to provide information about the availability of ADR and the consequences of refusing to engage in ADR when serving notices under Paragraphs 20, 32 and 33 of the Code.
  • Operators must consider ADR before making applications under Paragraphs 20, 32 and 33 of the Code.
  • Express requirement that the Tribunal take into account any unreasonable refusal to engage in ADR when awarding costs.
  • Reminder of the importance of ADR in disputes.
  • Whilst it is intended that these provisions will encourage the use of ADR and reduce the number of disputes going to Tribunal, it remains to be seen whether this will happen or if parties will pay only lip service to these provisions.

7 November 2023

Tribunal Venue

(ECCJAR)
  • All Code cases to be heard in Upper Tribunal save where referred to First Tier Tribunal.
  • First Tier Tribunal to have jurisdiction for all proceedings under the ECC
  • As many Code cases are already being heard in the First-Tier Tribunal, this is unlikely to have a significant impact.

6 April 2024

Harmonisation of renewal processes under the Code and the Landlord and Tenant Act 1954

(s. 61 PSTIA)
  • There are different procedures for renewing agreements governed by the Code and TBC subsisting agreements protected by the Landlord and Tenant Act 1954 (the '1954 Act').
  • Where a subsisting agreement is protected by the 1954 Act, it must be renewed under the 1954 Act.
  • There are differences between the 1954 Act renewal process and the Code renewal process (including which assumptions apply and the venue for the renewal).
  • The differences between the Code and 1954 Act renewal processes will be substantially removed.
  • The 1954 Act will be amended to adopt the Code valuation assumptions for telecoms leases.
  • The Tribunal rather than County Court is to hear renewals of subsisting agreements under the 1954 Act.
  • Simplifies what is an unnecessarily complicated position.
  • Some circumstances where the modification to the 1954 Act assumptions will likely reduce the rent on 1954 Act renewal leases.

TBC

Unresponsive Land owner process – apparatus over or under bare land

(s. 67 PSTIA)
  • No separate process under the Code to impose agreements on unresponsive land owners.
  • Operators can impose rights on an unresponsive land owner if a prescribed notice process is followed (similar to process for MDUs introduced by TILPA – see above)
  • Only applies to the installation of apparatus over or under (but not on) bare land.
  • Will assist operators with installing lines over or under land in rural areas.
  • Site providers and/or managers of bare land should be on the alert for notices from operators.

TBC – a consultation on implementation was launched on 10 July 2023 and closed on 4 September 2023

OFCOM Complaints Handling

(s. 70 PSTIA)
  • OFCOM is under a statutory duty to provide a Code of Practice.
  • The Code of Practice will address the handling by operators of complaints.
  • Operators should be aware that there will be further guidance on handling complaints.

TBC


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.