New Electronic Communications Code set to take effect in December, says government

The Department for Digital, Culture, Media & Sport (DCMS) announced that it had tabled new regulations before the UK parliament that will give effect to the new Electronic Communications Code.

The substance of the new Code is contained in the Digital Economy Act, which received Royal Assent earlier this year. Some provisions of the Code were brought into force earlier this year to give the government the power to write new regulations to bring the Code into effect. Some of the regulations to achieve that purpose have now been introduced.

Property dispute resolution specialist Alicia Foo of Pinsent Masons, the law firm behind Out-Law.com, said: "One of the regulations published is to effectively ensure continuity between the current Code and new Code. So, when the new Code comes into force – expected to be in December 2017 – those operators who had Code protection under the current Code will enjoy a degree of continuity under the transitional provisions. The new Code brings about quite sweeping changes so some continuity at least as to whom it applies is welcome."

"Furthermore, draft regulations make clear that proceedings relating to, for instance, the imposition of Code agreements, termination and modification of Code agreements, removal of electronic communications apparatus and lopping of trees will have to be commenced not in a court – currently the case at present – but in a tribunal," Foo said.

"As explanatory notes make clear, the effect of devolution may be felt here as it was also suggested that the Upper Tribunal in England and Wales might transfer suitable cases to the specialist property chamber of the First-tier Tribunal. However, that chamber is currently constituted for England but not for Wales and as a result the draft regulations only confer jurisdiction on the First-tier Tribunal for transferred cases in England. It remains to be seen whether and to what extent the various tribunals are prepared and ready to step in for the tried and tested ‘jack of all trades’ that is the County Court," she said.

Under the new Code, landowners would have less freedom to charge premium prices for the use of their property by telecoms companies. This is because, under the plans, rent rates would effectively be based on the underlying value of the land.

The proposed new code would also make it easier for telecoms companies to upgrade and share their equipment, such as masts or cables, without having to pay landowners extra, unless there is more than a 'minimal adverse impact' on the appearance of the apparatus or the landowner would face an additional burden as a result of the works.

The new framework would only apply to agreements entered into after the new Code comes into force.

In March, UK telecoms regulator Ofcom set out a draft code of practice designed to sit alongside the new Electronic Communications Code. The Ofcom code would govern how telecoms operators and landowners should interact with one another over the installation, maintenance and upgrade of electronic communications infrastructure. The final form code of practice and prescribed forms under the code have yet to be published.

Property law expert Ian Morgan of Pinsent Masons said the new regulations introduced by the government were "a welcome next step in the tortuous process of reforms to the outmoded existing Electronic Communications Code 1984", which he said was once famously described by one  judge as "one of the least coherent and thought-through pieces of legislation on the statute book". 

Morgan said: "The ‘old Code’ came from a time when Microsoft was developing their first Windows operating system and before the first commercial internet domain name had been registered. Its drafters could hardly have predicted the explosion in demand for bandwidth which stems from smartphones and the internet of things."

"The ‘new Code’ goes some way to meeting some of the criticisms and challenges posed by the ‘old Code’, and it is to the credit both of the government and all of the other stakeholders who have pressed for so long for reforms in this area, that Code reform is going ahead, given other legislative commitments in the current climate. It will be interesting to see how operators and site providers alike adjust their strategies in reaction to the reformed regime under the ‘new Code’," he said.

Separate plans for a new European Electronic Communications Code are being worked on by EU law makers.