The new Electronic Communications Code

The previous Electronic Communications Code – part of the Telecommunications Act 1984 – conferred statutory ‘Code Rights’ on specified telecoms operators to install, maintain, adjust, repair or alter their apparatus on public and private land. However, it underestimated the cooperation of operators, didn’t account for kit and apparatus being provided by third parties, and failed to anticipate the interaction between the 1954 Act and the Code.

The new Electronic Communications Code came into effect on 28 December 2017. It is intended to improve network coverage by increasing investment in digital infrastructure, give operators clearer rights and greater flexibility, and facilitate the sharing of network apparatus. It is also a nod to the importance modern society places on having connectivity in their homes and businesses, bringing it in line with other utilities providers.

What’s changed?

Operators’ automatic right to assign agreements

Operators are free to assign their agreements without consent. Any Code agreement which attempts to prohibit assignment to another operator or make it subject to conditions will be void. The only exception is if the landowner/occupier requires the operator to enter into an authorised guarantee agreement.

Operators’ automatic right to upgrade or share apparatus

Operators no longer require consent to upgrade or share apparatus with other operators provided any upgrading or sharing of the apparatus has no adverse impact on the appearance of the apparatus and does not impose any additional burden on the landowner. This right to share includes the right to carry out works to enable sharing. Any attempt to prevent sharing will be void. This prevents landowners from charging a site sharing fee for additional operators or negotiating a further fee when additional equipment is added to a site.

Landlord and Tenant Act 1954

Any tenancy which has Code Rights as its primary purpose will be automatically excluded from the security of tenure provisions of the 1954 Act. 

Termination and removal

There is a new and lengthy two-stage process for landowners to terminate agreements with operators and remove apparatus. Under the new Code, the landowner must also give the operator 18 months' notice, significantly longer than the 28 days required under the old Code. This also provides two opportunities for operators to serve a counter-notice in objection.

Other key changes include:

  • Stricter formalities surrounding agreements and notices;
  • Changes to the valuation method of land used for telecoms purposes; and
  • Transitional arrangements determining the circumstances in which the old and new Code will apply.

Whilst an element of the operator’s protection is removed, the new Code certainly seems to strengthen the position of telecommunications operators and expose landowners to greater rights over their land.

To discuss any aspects of this article, or to find out more about the impact of the new Electronic Communications Code, please contact Gemma Featonby, or other members of Thrings’ Property Litigation and Commercial Property teams.

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