Dealing operators an even better hand? - More changes to the Electronic Communications Code

Dealing operators an even better hand? - More changes to the Electronic Communications Code

Resisting "Code Rights": lessons for developers and landowners

The government has launched a consultation on changes to the Electronic Communications Code (the Code) to support digital coverage and connectivity. This has, in part, been triggered by the impact of the COVID-19 pandemic further highlighting the importance of strong digital connectivity across the UK.

The current Code only came in to force in 2017 but the government is consulting on further changes as it pushes to ensure that 95% of the UK’s geographic landmass has 4G coverage by 2025 and that the majority of the population has 5G coverage by 2027.

Three areas have been highlighted as areas where problem exist:

Issues relating to obtaining and using Code agreements

Currently Code rights can only be used if an agreement is in place between a Code operator and a landowner (whether by agreement between the parties or pursuant to a court order). The government believes that failures to make agreements quickly is slowing down the rollout of mobile coverage and gigabit capability.

The consultation is therefore exploring ways to speed up the process, encourage greater dialogue and improve ways for disagreements to be resolved. The consultation will also look to address scenarios where landowners fail entirely to respond to requests for Code rights.

Rights to upgrade and share apparatus

The government is concerned that a lack of clarity in the Code on automatic rights to upgrade and share apparatus, is preventing efficient upgrading and is worsening relationships between operators and landowners. In particular the strict limitation on rights to upgrade and share to agreements completed after December 2017 means that apparatus pre-dating this (which may be at greatest need of upgrading) are not covered.

The consultation will therefore look at when rights to upgrade should be available, clarify the position where operators want to upgrade but do not meet the current conditions under the Code, and consider the benefit of introducing retrospective rights to share and upgrade apparatus installed pursuant to agreements completed prior to December 2017.

Renewal of expired agreements

Code agreements have fixed expiry dates. The Code does provide that operators can continue to exercise Code rights following expiry under the Part 5. However, Part 5 does not apply to all Code agreements and the government feels there is a lack of clarity and consistency on when these rights apply. In addition, there is a view that the current Code does not promote prompt negotiations for renewal agreements.

The consultation seeks to achieve more consistency in what happens when a Code agreement expires and encourage renewal negotiations to be undertaken promptly and with appropriate alternatives available where no agreement can be reached by the parties.

What is this likely to mean?

Given the government’s objectives, there is potential that any changes to the Code following the consultation will further improve the position of operators when it comes to negotiating Code agreements. 

The consultation closes on 24 March 2021, and you can take part here.

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