Government consults on Electronic Communications Code reforms

The proposals outlined in a draft Bill (63-page / 480KB PDF) published by the Department for Culture, Media and Sport (DCMS), if introduced, would set out new rules governing the installation and maintenance of electronic communications infrastructure, such as mobile phone masts. Both property owners and telecoms operators support reforms to the existing Code.

Sajid Javid, UK culture secretary, said: "The growth in consumer demand for digital services relies on a sustainable and robust network of infrastructure – from fibre-optic cables and copper wire to wireless antennae and masts. In order for this infrastructure to be rolled-out, it needs a modern, clear, and relevant legal framework."

"My aim is to reform the current Electronic Communications Code in ways that will promote network connectivity, expand coverage and take into account the legitimate interests of all parties. Beyond this, through enabling the rollout of infrastructure, Code reform will provide more consumers across the country with a range of high-quality digital services," he said.

Under the new Code, telecoms operators that reach agreement with land owners over access to their property would have expanded Code rights; to install electronic communications apparatus on, under or over land, inspect, maintain, adjust, alter, repair, upgrade and operate that equipment. In contrast, the government’s proposals will introduce a wholly-new procedure for a land owner to require the removal of electronic communications apparatus, which could make it more difficult for operators to resist the removal of their apparatus.

The government's plans would also see telecoms operators given new qualified rights to "share the use of any such electronic communications apparatus with another operator" and upgrade that apparatus, both without the consent of a person bound by those rights, such as a landlord. 

It would not be possible to “contract out” of these provisions, but they are subject to certain limitations, namely where the main telecoms operator "has exclusive possession of the apparatus", and the changes to the apparatus "have no adverse impact on its appearance or no more than a minimal adverse impact on its appearance", and impose “no additional burden" on land owners.

The proposed new Code also accounts for cases where telecoms operators cannot reach an agreement with property owners on the installation of electronic communications apparatus on their land. Courts can impose such agreements in certain circumstances, whilst operators can apply for an order allowing them to install and operate their equipment on land, on an interim basis, whilst a dispute is in the process of being resolved.

Telecoms and property law experts Alicia Foo, Dev Desai and Nicholas Vuckovic of Pinsent Masons, the law firm behind Out-Law.com, welcomed the fact DCMS had launched a full consultation on the reforms.

Earlier this year, the government was forced to withdraw its plans to introduce a new Electronic Communications Code through the Infrastructure Bill that was passing through parliament at the time. Those proposals were met with criticism from telecoms operators and land owners who also expressed concern at the reforms being rushed through parliament. Opposition MPs had threatened to vote against the passing of the Infrastructure Bill if the provisions relating to the Electronic Communications Code were not removed from the Bill and fully consulted on.

Vuckovic said: "It is good to see that January’s misguided attempt to rush a new Code through parliament hasn’t derailed Code reform. It now seems that, in light of the cries of dismay from all corners; the sensible decision has been made to take a considered approach and give stakeholders a proper say in the future of the regulation of their industry."

"It is interesting that the draft Bill contains only relatively minor departures from the draft tabled in January. Given that these changes are mostly intended to address drafting issues, they go some way to highlight the inadequacy of January’s proposals. There is, however, clearly more work to be done, and it will be interesting to see the outcome of this important consultation for the industry," he said.

Foo said the draft Code broadly seeks to follow recommendations made by the Law Commission in 2013, with one "notable exception".

"The exception is that the County Court would continue to have jurisdiction over disputes arising under the Code, rather than the Lands Chamber of the Upper Tribunal," Foo said. "The remaining recommendations strive for clarity, for example in relation to the interaction between the Code and the security of tenure provisions in the Landlord and Tenant Act 1954. However, in implementing these, DCMS must also strike a balance between the competing interests of land owners and operators, and certain issues, such as the proposals for calculation of consideration, mean that the draft Code as it stands is bound to be hotly-contested."

Desai said that reform of the Electronic Communications Code is "essential" and that the government has committed to as part of a wider deal with telecoms operators. However, he said "by seeking to shoe-horn a rushed and clumsy new Code into the late stages of the Infrastructure Bill as a fait accompli", the government appeared to have "failed to keep its part of the bargain".

Desai said if DCMS gives "careful and thorough consideration" to stakeholders' responses to the consultation (28-page / 563KB PDF), which closes on 30 April, it should result in "a much-needed new Electronic Communications Code which properly and fairly regulates the relationship between operators and site providers in a way that is fit for purpose for the delivery of current and future telecommunications services".