New Year's Resolutions For The Electronic Communications Code

• Published date: 03 February 2022
• Subject Matter: Media, Telecoms, IT, Entertainment, Real Estate and Construction, Mobile & Cable Communications, Landlord & Tenant - Leases
• Law Firm: Herbert Smith Freehills
• Author: Mr Nicholas Turner, Aaron White and Kate Wilson

Since its revision in 2017, the Electronic Communications Code (the Code) has been the subject of much debate and confusion on the part of both operators and occupiers (being the landowner or person who is able to grant Code rights) as parties struggle to align their conflicting interests and objectives with regards to the implementation of electronic communications networks. As disputes have come before the courts, further guidance on the interpretation of the Code has been forthcoming, but the mere existence of these cases serves to highlight the fact that the Code is far from perfect in its current form. The government has acknowledged that further changes are necessary, and following a consultation last year, it has now published the draft Product Security and Telecommunications Infrastructure Bill (the Bill) which will implement a number of reforms to areas of the Code where the government believes change in practice will be most beneficial.

So what changes to the Code does the Bill look to implement? Broadly, the issues identified in the consultation fell into three categories:

Negotiation of agreements and dispute resolution

• Anyone who has been involved in a negotiation of an agreement conferring Code rights on operators will appreciate that the process is usually lengthy and oftentimes, frustrating. Many operators report a lack of engagement from occupiers when seeking the grant of Code rights in respect of their land. On the flipside occupiers are often frustrated by operators' lack of willingness to move away from what they consider to be their "standard position" when negotiating a Code agreement These issues have already been addressed in part in respect of the residential sector, where legislation has been implemented to allow for the imposition of code rights by the court where a landlord of a multi-tenanted residential building has failed to reply to a request from an operator for Code rights. The government now intends to mirror this approach in the commercial sector, so that where occupiers completely fail to engage with operators, a new statutory process will allow an operator to apply to the First Tier Tribunal, asking it to impose temporary Code rights on the occupier for a maximum of six years. It is hoped that the threat of the court imposing rights on to an occupier will encourage them to engage with operators when approached.
• For occupiers who are frustrated in their dealings with operators, and to try and promote better...