The Department for Culture Media & Sport (DCMS) has launched a consultation on the reform of the Electronic Communications Code (Code), which closes on 30 April 2015. This follows, as we reported in our last newsletter, the withdrawal in January of amendments to the Infrastructure Bill which would have introduced a new Code. The amendments were withdrawn after significant pressure from stakeholders concerned that the reforms were being rushed through parliament without full consultation.
The Code governs the relationships between property owners and providers of electronic communications services that are licensed by Ofcom (known as operators) and is designed to support the rollout and maintenance of electronic communications networks. It gives operators the right to install and maintain apparatus in, over and under land and rights akin to security of tenure for that apparatus.
Both property owners and operators support reforms to the existing Code. The Law Commission, which published a report on the Code in February 2013 after a wide ranging consultation, highlighted three main reasons why the current Code is no longer fit-for-purpose:
- it is complex and extremely difficult to understand
- its approach, based on 19th and early 20th century statutes dealing with telephone wayleaves, is outdated
- there is evidence of concern that the Code is making the rollout of electronic communications more difficult.
The consultation invites submissions on all areas within the scope of the Code. DCMS has also invited specific response to areas including:
- the definition of land and ownership of property
- how payment for Code rights is to be determined by the court
- whether it is appropriate to give operators an automatic right to upgrade and share apparatus in certain circumstances
- if operators should be able to “contract out” of certain of their Code rights, and
- the inter-relationship between Code rights and land registration.
Annex 1 to the consultation is a draft Bill which contains a revised version of the Code in almost identical form as the government sought to introduce via the Infrastructure Bill with minor changes made to address drafting errors. The proposed new Code is significantly based on the Law Commission’s recommendations.
It is hoped that the government gives full and careful consideration of stakeholder’s responses to the consultation and that this results in a new Code that is fit for the delivery of 21st century communications services and which fairly regulates the relationship between operators and property owners. It must also be hoped that May’s general election does not derail the current willingness to reform the Code.
Click here to access a copy of the Consultation documents.