A recent report published by the Law Commission has recommended, amongst other things, a complete redraft of the Electronic Communications Code (“the Code”). The Code was initially brought in as a Schedule to the Telecommunications Act 1984 and later amended by the Communications Act 2003 and essentially governs the legal relationship between a telecommunications provider and an owner of land.
The Code was initially drafted to cover an expanding telephone network and the introduction of mobile phones, but has more recently had to be applied to and interpreted in the context of ever modernising telecommunications systems including broadband, the 3G mobile network, on demand television and most recently the 4G communications network. Concerns have been raised as to the appropriateness of the Code in the modern world and whether it is hindering rather than helping the rollout of new technologies across the country.
As a result, the Government launched a wide review of the regulation of the telecommunications sector and the Law Commission conducted a formal UK-wide consultation in 2012. Some of the main recommendations given in the final Report, which apply only to England and Wales, include:
- The Code to be completely replaced rather than just amended.
- The new code should contain a full list of rights which are clearly drafted and technology neutral, dealing with all areas including the mobile and cable networks.
- Disputes arising should be dealt with by the Lands Chamber of the Upper Tribunal, rather than the County Court, which would have power to grant interim access in relevant cases where the final outcome is pending and also interim rents. This would give operators a time advantage in carrying out works, where the dispute is only relating to a decision on price or compensation.
- There should be automatic rights for telecommunications operators to share and upgrade equipment, subject to limitations and there being no automatic right to increase the burden placed on a landowner.
- Ofcom should have greater involvement in prescribing forms and precedents for the use of the operators or the optional use of landowners.
- A new test should be introduced to enable the rights of operators under the Code to be imposed on a landowner where i) the landowner can be adequately compensated financially (based on market values) and ii) the public benefit outweighs any prejudice to the landowner.
- A lease granted for purposes under the new code should not automatically fall within the scope of the security of tenure provisions of the Landlord and Tenant Act 1954. If operators leave equipment in place once an agreement or lease has expired then it is recommended that a notice and counter-notice procedure is entered into to allow, for example, for the landowner to request the removal of the equipment with a period of time prescribed for the operator to deal with the removal.
- Agreements made between tenants and telecommunications operators should not be binding on landlords once the tenant’s lease has expired, unless otherwise agreed.
- An operator should have the right to assign to another operator on the basis that they provide an authorised guarantee agreement.
- Where rights granted under the new code are not done so within a new lease, they should be classed as overriding interests. This addition should therefore be made to Schedule 1 and 3 of the Land Registration Act 2003.
We await the formal response of the Government to the findings and recommendations of the Report but given the widely acknowledged unsuitability of the Code for the current and future development of telecommunications, it is likely that we will see some welcome changes.