The Law Commission has recently published a report recommending a new approach to the Electronic Communications Code – the statutory regime which regulates the legal relationship between telecoms operators and landowners. Rather than just proposing changes to the existing code the Law Commission has suggested preparation of an entirely new version to signal a fresh beginning and address modern issues such as site sharing, future technological changes and the resolution of disputes.
The Electronic Communications Code ("the Code") was introduced as part of the Telecommunications Act 1984. The Code at the time was intended to govern the legal relationship between parties for the installation of additional telecommunications apparatus as the monopoly of British Telecommunications ended and mobile phones began to make an appearance. Today, although changes were introduced by the Communications Act 2003, the Code continues in the same way to regulate the relationship between operators and landowners for the installation and retention of apparatus, but the apparatus now provides broadband infrastructure, vastly enhanced mobile communications (both speech and data), on demand television networks and more.
It is due to such changes in the nature of modern communications that the Government decided to launch a wide review of the sector regulations. The Law Commission conducted a formal consultation from June to October 2012. The Commission's aim was to ensure that the regulations were up to date in dealing with new technology, but also that they recognised the public interest and importance of the provision of network services, such as broadband services for rural communities.
Three highlights from the report
The Law Commission's recommendations are detailed and can be considered fully via the link at the end of this article. This article will review only three of the highlights.
1. Rights and ancillary rights
The main purpose of the Code is to set out the rights which can be regarded as standard by both landowners and operators and should guide them in reaching an agreement for the installation and retention of apparatus. Of course, agreement will not always be possible between the parties and in some circumstances the operator will request that the rights for operators set out in the Code are imposed. The Commission has therefore given careful consideration to its suggestions and the updates include a right to inspect and maintain, and a right to operate, equipment in, on or under the land. The refined, full list of rights detailed is considered by the Commission to be: "clearly drafted and consistent with modern technology".
Ancillary rights are also recommended, for example, to allow for assignment of an agreement or lease to another operator. Economically, the right to assign and to share sites between operators (where there is no additional burden on a landowner) is a sensible suggestion. This could promote easy roll out of electronic communication networks at reduced cost – for example the installation of further fibre optics in the same bundle underground – thereby better serving the public interest.
2. Dispute resolution
The resolution of disputes was also considered and the Law Commission has recommended that the proper forum for disputes should be the Lands Chamber of the Upper Tribunal. Under the existing Code disputes are directed to the county courts, which sometimes lack the specific expertise in land, easements and the Code to decide on such disputes.
A further recommendation is to allow the Tribunal to permit operators to take interim access to begin installation whilst a dispute continues, and to fix interim rents. This is a welcome proposal, which would allow operators to commence works on sometimes large capital investment projects, when the only dispute with a landowner is about price or compensation.
3. Removal on expiry of a commercial agreement
Finally, the Commission has considered the concerns of landowners if operators retain apparatus in place once an agreement or lease term has expired. Their suggestion is to enact similar provisions in the Code as the notice and counter notice provisions under the Landlord and Tenant Act 1954. However, they have wanted to make it clear separately that the Landlord and Tenant Act should not apply automatically to leases that confer rights under the Code.
The result of the Commission's proposal would be that an operator or landowner would have to take steps to extend or to bring an agreement governed by the Code to an end. It is also suggested that landowners could call for the removal of apparatus at the end of a contractual term, giving a period of notice to the operator and time for the operator to propose new terms.
This is a recommendation that will need careful thought and review. As noted above, a key intention of the Commission is to support the public interest of installing up to date electronic communication systems. If this final reform is pursued without sufficient exceptions (and to give credit the Commission have listed some potential caveats), a landowner could be in a position to demand the removal of equipment that may serve the larger community simply because a strict series of notice periods have not been followed.
The Commission has confirmed that its recommendations only apply to England and Wales, but was grateful for the input from around the UK. The Commission report in particular expresses thanks for the input from Shepherd and Wedderburn on Scottish legal aspects, and notes that the Commission intends to pass all such specific responses on to the devolved administration, with the intention that the Scottish Ministers may follow UK Government reform.
There is much to be gained by operators and landowners if the Code is reissued and brought up to date. At the present time the provisions can be criticised as leaving too much open to interpretation and not being clear, in particular, on the potential overlap with the 1954 Act. The next steps will be the most important though, as the Government considers its response and the format of any legislation. However as one of the of the current coalition strategies for growth is infrastructure investment, and specifically promotion of high speed rural broadband, it would be surprising if there were no appetite for change.