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The Electronic Communications Code: a chance to have your say

This is your opportunity to have your say and address the difficulties presently faced, so that operators and site providers can move forward

In December 2017 the new Electronic Communications Code (“Code”) came into force. The new Code was brought in to address the uncertainties that Code operators, site providers, occupiers and their various professional advisers had wrestled with for decades as a result of the old Code.

When the old Code came into force, Michael Douglas’ Wall Street brick phone was the pinnacle of modern technology. 33 years later, the digital landscape has changed dramatically. The old Code was not fit for purpose and, as a result, operators and providers were faced with the unenviable task of seeking to negotiate Code agreements for the siting of operators’ apparatus without any certainty as to how a court or tribunal would decide a case if a dispute arose. This did nothing to assist the Government’s desire for the expansion and upgrade of the UK’s digital infrastructure. 

The modern world requires a reliable high speed digital infrastructure. The last 12 months have illustrated this more so than ever, with broken video conference calls and children’s howls of frustration when their on-line gaming crashes becoming an everyday occurrence.    

According to Government data, 36.6% of UK premises benefit from gigabit-capable broadband, 91% of the UK is covered by a ‘good’ 4G signal and 69% of the country is covered by all four main code operators. That is good news if your property falls within one of the areas already covered by these statistics. However, that still leaves large areas of the country without reliable mobile or broadband services.

The Government has set ambitious targets in relation to 4G, 5G and gigabit-capable broadband coverage. By 2025 the industry has been tasked with providing 85% gigabit-capable coverage and 95% 4G coverage from at least one of the main four operators. Having been set this task, the new Code was initially welcomed by Code operators. The new Code was interpreted by all as being ‘operator friendly’ and was certainly championed as such by the operators. The new Code, largely, gave the operators what they had asked for in terms of a new Code. However, three years since its introduction, the practical and legal positons are still, to a great extent, as uncertain as they were under the old Code, and disputes continue to arise between operators, site providers and occupiers as a result. 

There continue to be disputes over the terms of the Code agreements, including the rights sought by operators, and particularly rights to share occupation and upgrade equipment, without consent from the site provider, and without having to pay a premium for the privilege. There are also disputes over access, both in terms of preliminary access to assess the suitability of a site for the operator’s equipment, and in relation to long term needs once equipment has been sited. Consideration and compensation are also still a point of contention and uncertainty remains regarding the operator’s legal basis of occupation, particularly in relation to subsisting agreements (those in existence before the new Code came into force). 

As a result, rather than providing certainty for all concerned, thereby speeding up the process from initial negotiation to the siting of equipment, there remain delays and disputes, which the new Code was intended to remove.

The Government has now acknowledged the concerns raised by those involved in this sector and, as a result, the Department for Digital, Culture, Media and Sport has issued the ‘Access to land: consultation on changes to the Electronic Communications Code” inviting comments from all stakeholders by 24 March 2021. 

For all those involved in this sector this is your opportunity to have your say and, hopefully, address the difficulties presently faced, so that operators and site providers can move forward with greater certainty in the future. This is particularly so for site providers and land owners, who may consider the new Code, in its existing form, substantially favours the operators. 

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