Précis The Commission has published a consultation on proposals for reforming the Electronic Communications Code (the “Code”). The Code is applied to network operators to give them rights to install and maintain telecoms apparatus on public and private land.

What? In response to the Government’s overall review of communications-based legislation, the Department for Culture, Media and Sport referred the Code to the Commission. The Commission has since published a consultation on its proposals for reform of the Code.

Although there are certain parts of the Code which it is thought will remain the same, most notably the existing procedure for those with an interest in land to require the alteration or removal of apparatus, some areas may be altered or changed altogether. On a general level, the Commission proposes that Code rights should be technology-neutral to accommodate developments in technology and to avoid the distortion of an operator’s use of technology.

Currently, the Code allows certain network operators to: execute works on land for, or in connection with, the installation of electronic communications; keep electronic communications apparatus installed on that land; and enter land to inspect any equipment. These rights may be extended or reduced as a result of the consultation.

In addition, the current system creates priority for telecoms operators over various occupiers of land, such as landowners or tenants. These priority provisions can, however, be disadvantageous to third party successors in title because the rights last so long and commonly bind landlords to obligations created by their tenants without their landlord’s authorisation. The Commission is now seeking views on these provisions.

The Commission also wishes to clarify the current powers of courts to grant Code rights in the absence of consent on the basis that:

"any prejudice caused by the order is capable of being adequately compensated for by money.”

It is thought that this test is unclear and difficult to understand and needs to be revised.

In connection with ancillary rights, the Commission asks whether access to neighbouring land should continue to be restricted and seeks views on the existing provisions for installing overhead lines. The Commission is also keen to understand whether the right to cut back vegetation should extend to private land and whether rights of upgrading, sharing and assignment should be expressly included in the Code.

Whether existing third party rights of potential service subscribers to take action where a landowner has refused access will also be reviewed in order to establish whether this provision is thought to be necessary or justified.

The existing procedure for those with an interest in land or adjacent land to require the alteration of apparatus, including its removal, is likely to be retained.

With regard to financial rewards, the Commission proposes making the provisions for paying compensation to landowners clearer and also seeks feedback on possibly extending the provisions for those who are not bound by Code rights when they are created but are subsequently unable to remove code apparatus from their land under the Code.

Finally, the Commission proposed that the county court should no longer be specified as the forum for most disputes, and suggests alternatives, such as that the Lands Chamber should adjudicate disputes, to be the forum for deciding the conferral of Code rights.

So what? Both the report and consultation will be of interest to network operators and those affected by the provisions of the Electronic Communications Code. The Law Commission requests responses by 28 October 2012 and proposes to publish a final report with its recommendations in the spring of 2013. Whilst many land owners and occupiers will welcome the reforms, many network operators and service providers rely on the Electronic Communications Code to protect their infrastructure investment. We expect to see opposition to some of the proposed changes.