A recent Ofcom consultation is seeking views on the form of two notices that Ofcom is required to prescribe following amendments to the Electronic Communications Code made by the Product Security and Telecommunications Infrastructure Act 2022. These notices relate to the upgrading and sharing by an operator of apparatus situated under privately owned land and are required to be given by the operator before the operator begins to upgrade the apparatus or share its use.

As part of the changes to the Code, sections 58 and 59 of the 2022 Act introduce a right for each of the following two categories of operator to upgrade or share apparatus they keep installed below ground:

  • code operators who are party to a "subsisting agreement" made under the previous Code in schedule 2 of the Telecommunications Act 1984; and
  • operators who have apparatus that was installed before 29 December 2003 and are not party to any Code agreement.

If either category of operator wants to exercise the new right, they must meet certain conditions:

  • the upgrading and sharing of the apparatus must have no adverse impact on the land; and
  • it must not impose any burden on any person with an interest in the land (which includes anything that has an adverse effect on the enjoyment of the land or causes loss, damage or expense to the person).

In addition, the operator must attach a notice to a conspicuous object on the relevant land. Under the Code, Ofcom must prescribe the form of that notice.

The purpose of the consultation is to allow interested parties to comment on drafts of these template notices. Ofcom says that it will carefully consider any comments it receives before publishing any final version of each notice.

The deadline for responses is 6 March 2023.

For further information on this topic please contact Gordon Moir at Wiggin by telephone (+44 20 7612 9612) or email ([email protected]). The Wiggin website can be accessed at www.wiggin.co.uk.