Summary

A Bill has been introduced in Parliament to enable telecoms network operators to gain access to multiple dwelling buildings to deploy fixed line broadband connections, where a landlord has repeatedly failed to respond to the operator’s request for access following a tenant’s request for an electronic communications service.

Policy Background

Gigabit capable networks (with speeds of up to 1000 Mbps) are considered by Government to be the enabling infrastructure of the UK’s future economic growth, facilitating the development of new consumer services. Government is investing £5billion to deliver nationwide coverage of gigabit speed broadband as soon as possible, and it will remove the barriers to faster network deployment, enabling the private sector to get this done.

Law-Now reported on the October 2018 Government consultation which highlighted the risk that tenants may be left behind because of a significant number of landlords failing to respond to requests for permission to install equipment. Government has heard evidence that operators under the Electronic Communications Code are removing properties from their build plans, because landlords are not responding to requests for access. Operators are not using the Code’s existing procedures because of the cost and time taken for a full hearing in the relevant Tribunal and the number of premises involved.

The Government recently issued its response as a result of the consultation, which confirmed its intention to introduce legislation to ensure leased properties are not left behind. The Government intends to lower the time it takes for an operator to apply to the Tribunal to six weeks.

The Bill

The legislation (the Telecommunications Infrastructure (Leasehold Property) Bill) will amend the Electronic Communications Code to give operators a faster, cheaper route to obtain from the relevant Tribunal interim rights (“interim Code rights”) to deliver the electronic communications service. The right is to deploy, upgrade and maintain fixed-line broadband connections. This route applies only where a tenant has requested a service of an operator, the landlord’s permission is required for that service to be delivered and the landlord fails to respond to repeated formal requests from the operator for access. The Bill needs to pass through Parliament so timing for Royal Assent is not known.

The legislation applies to the provision of an electronic communications service to a multiple dwelling building (a block of residential flats and apartments) or other premises to be specified in regulations. So currently it does not apply to commercial property, nor a building with a single dwelling. The legislation applies to the whole of the UK.

The operator may not apply for an order from the relevant Tribunal (known as a Part 4A order) unless it has given the landlord two warning notices and a final notice.

The order of notices is as follows and the timings and procedure are somewhat complex. First the operator gives the landlord a request notice seeking its agreement to the operator being given a Code Right. The first warning notice may only be given once 7 days have passed from the date the request notice was given. The second warning notice may only be given once 7 days have passed from the date the first warning notice was given.

The final notice may only be given within a “permitted period”. This begins once 7 days have passed since the day the second warning notice was given or 28 days have passed since the day the request notice was given, whichever ends later, and ends once 28 days have passed since the day the second warning notice was given.

The landlord is given 14 days from the date the final notice is given in which to respond in writing, otherwise the operator can apply for the Part 4A order. The operator will only have a limited period (to be specified) following the giving of the final notice in which to apply for interim Code rights.

The Tribunal (Upper Tribunal for England and Wales, Lands Tribunal for Scotland) may make a Part 4A order if the relevant notices have been given and the landlord has not objected to the making of the order. The operator needs to provide evidence to the Tribunal of their attempts to contact the landlord. The order will impose an agreement on the landlord. The agreement must include terms restricting the operator’s right to enter the land to specified times except in case of emergency; imposing requirements on the operator relating to insurance cover and indemnifying the landlord; and relating to the maintenance or upgrading by the operator of the relevant apparatus. The landlord will be able to apply to the Tribunal to argue the agreement should not apply to them or be modified.

The agreement is not permitted to last more than a period that will be specified in regulations but will be no more than 18 months. It is an interim agreement. If the operator wants their rights to continue beyond that period, they will need to do so either by reaching an agreement with the landlord, or by applying to the Tribunal to have rights imposed using the existing process under Part 4 of the Code.

The operator will not have the right to force entry to the property.

The operator may be ordered to pay the landlord compensation for any loss or damage sustained as a result of the exercise of the Part 4A Code right.

If there is a Part 4A agreement in effect between the operator and the landlord, the operator may not also apply for interim Code rights under paragraph 26 of the Code.

The new legislation is intended to apply where a landlord has repeatedly failed to respond to the operator’s request for access. If the landlord substantively responds to the notices given by the operator (for example, negotiations are taking place), this will take the request for Code rights out of the scope of this new process. In that situation, for instance where the landlord refuses to grant access or fails to reach an agreement with the operator, the operator can seek to utilise existing Code provisions, such as applying for an order from the Tribunal to have an agreement imposed.

Conclusion

The draft legislation is somewhat procedural, but when enacted may significantly assist operators’ roll out of new fixed line broadband connections (including for gigabit-capable networks) in blocks of residential flats and apartments.