What does the Electronic Communications Code mean?
The Digital Economy Act 2017 brought into effect a new ‘electronic communications code’. In Ofcom’s own words the effect is to introduce a range of measures to make it easier for network operators to rollout infrastructure (such as phone masts, exchanges and cabinets) on public and private land.
The Department for Digital, Culture, Media & Sport’s introduction to the new code commented that the code would make major reforms to the rights that communications providers have to access land by moving to a “no scheme” basis of valuation regime. The purpose of this is to ensure that property owners will be fairly compensated for use of their land, while also explicitly acknowledging “the economic value for all of society created from investment in digital infrastructure.” In this respect, it will put digital communications infrastructure on a similar regime to utilities like electricity and water.
The Code makes it easier for communications providers to deploy and maintain their infrastructure, and operators have new automatic rights to upgrade and share. The purposes, according to the Department’s paper is to “ensure that new technologies can be deployed efficiently as they come to the market, with communications providers safe in the knowledge that they cannot be charged extra for changes where there is minimal adverse visual impact or burden on site providers.” No doubt there will be considerable debate about what is meant by “minimal” and “burden” in this respect.
The new Code also enshrines assignment rights. This means that as infrastructure assets are sold and acquired by communications providers, under infrastructure sharing arrangements for example, there will be no option for landlords to negotiate new terms for existing contracts.
Under the previous code the position of the communications provider as tenant of the site led to some interesting debates about whether the lease should be excluded from the security of tenure provisions in the Landlord and Tenant Act 1954, and what residual rights would remain with the communications provider even if the Act was excluded. The new Code expressly disapplies the 1954 Act so that the provider’s security is provided by the code alone. While removing uncertainty it strengthens the provider’s hands by limiting the grounds by which the land owner can obtain possession at the end of the agreed period of occupation of the site.
Supporting the new communications code is a Code of Practice issued by Ofcom in December 2017, which suggests best practice for operation of the electronic communications code and this will, no doubt, heavily influence discussions between electronic communications providers and land owners and their agents.