Development and potential change to the Electronic Communications Code

In January 2021 the Department for Digital, Culture, Media and Sport (DCMS) published a consultation on changes to the Electronic Communications Code. On 24 November 2021, following the consultation, the Product Security and Telecommunications Infrastructure (PTSI) Bill was published and is currently on its second reading in the House of Commons.

The aim of the consultation was to see whether changes to the Code can help ensure that the UK has sufficiently robust electronic communications networks to deliver the coverage and connectivity consumers and businesses need.

It identified three main problem areas: issues relating to obtaining and using Code agreements; rights to upgrade and share; and difficulties specifically relating to the renewal of expired Code agreements

Key changes introduced by Bill

The PTSI Bill proposes a number of key changes to the Code and the Landlord and Tenant Act 1954, including:

• Changes to the definition of "occupier" so that it will apply to land exclusively occupied by an operator. This will mean that operators can now seek a new Code agreement from a landowner where that operator or another operator is physically in occupation of the site. This would be a welcome change for operators following the decision by the Tribunal in the case of Cornerstone Telecommunications Infrastructure Limited v Compton Beauchamp Estates Limited (2019)
• Changes to the menu of Code rights contained in paragraphs 3 of the Code so that it now expressly includes a right to "share" electronic communications apparatus. This brings much needed clarity to the Code that was previously lacking;
• While the rights in respect of upgrading and sharing largely remain the same and there are no changes to the conditions for sharing and upgrading in Paragraph 17 of the Code, there will be an unlimited right to share electronic communications apparatus installed under land (that is, underground infrastructure such as fibre optic cables);
• Changes to the valuation methodology under section 34 of 1954 Act for subsisting agreements to which Part 5 of the Code do not apply. The changes clarify how the rent/consideration under a new tenancy granted which confers Code rights is to be assessed, bringing it in line with valuations under the Code;
• An ability for operators to apply to the Tribunal for an order imposing a Code agreement on a landowner/occupier, where the landowner/occupier has not responded to repeated requests by an operator for a Code agreement;
• A requirement for operators and landowners/occupiers to consider and, where appropriate, to engage in alternative dispute resolution. The aim of this is to promote negotiations and co-operation between operators and landowners/occupiers; an
• The introduction of a complaints procedure for landowners/occupiers.

Osborne Clarke comment

The government hopes that these changes will resolve some of the difficulties that have been encountered in practice with the Code since its introduction and subsequent decisions by the Tribunal on the interpretation of the Code. Given the changes proposed, we are sure that landowner and operator communities alike are eagerly awaiting the introduction of the PTSI Bill. We anticipate that it will receive Royal Assent later this year.