The Electronic Communications Code 2017 - what you need to know

The Electronic Communications Code 2017 - what you need to know

Have you ever been asked to allow telecommunications provider to carry out works on your land?

Telecommunications companies need rights to carry out works on private land to enable them to build up their networks and meet the ever increasing needs of modern society. To support the developments of sustainable telecommunications networks, the Electronics Communications Code 2017 was brought into force. This has significant implications for land owners. 

What is The Electronic Communications Code 2017?

The Electronic Communications Code 2017 (the “Code”) is set out in schedule 1 of the Digital Economy Act 2017.  It repeals the electronic communications code contained in schedule 2 to the Telecommunications Act 1984.

Why is an electronic communications code needed?

There is a high level of dependency upon access to communications networks and they are essential to everyday life. Telecommunications operators need to construct infrastructure and install equipment on land to provide and develop their communications network. The Code gives operators statutory rights to facilitate the creation, development and operation of their networks.

Why did the previous electronic communications code need to be replaced? 

The previous code has struggled to keep up with the digital market, changes in technology and pressure on telecommunications companies to provide network coverage. Reform was needed to provide a suitable statutory framework to support the development of telecommunications networks.

When did the Code come into force?

28 December 2017

What does the Code aim to do?

  • Promote network connectivity.
  • Expand coverage.
  • Take into account the legitimate interests of all parties.

What changes are made by the Code?

Changes include:

(a) New rights to operators

Rights granted to telecom providers are expanded. There are automatic rights for operators to assign, upgrade and share the use of their apparatus (see below).

(b) Upgrading or sharing

Operators are granted the automatic right to upgrade or share their apparatus as long as certain conditions.

(c) Assignment

Operators are granted an automatic right to freely assign telecommunications agreements. 

(d) Valuation

The consideration payable to a landowner is calculated by reference to the open market value of the land from the landowner’s perspective only. This means that the purpose of the site for an operator's telecoms provision cannot be taken into account, which is likely to reduce any amounts payable to the landowner.

(e) Termination

The Code requires a much longer period notice to be given by the landowner if it wishes to bring any telecommunications agreement to an end.

Application – does the Code apply to telecommunications agreements completed before 28 December 2018?

Generally speaking, the Code will not have retrospective effect. The Code applies to pre-existing telecommunications, but with modifications. 

What does this mean for landowners?

The Code puts landowners in a much less favourable position:

  1. Increased rights for operators.
  2. Lack of control over land (security issues).
  3. Lower consideration/rents payable by operators.
  4. Lack of control over who is occupying.
  5. Longer time frame to end agreement.

What happens if landowners don’t agree to enter into telecommunications agreements with operators?

The operator can apply to the court to impose a telecommunications agreement.  If this happens, the court may make impose an agreement if it thinks that:

  • the landowner can be adequately compensated by money; and
  • the public benefit in granting the agreement outweighs the prejudice caused to the landowner by imposing the agreement.

Historically, operators have been reluctant to use this process given the cost, timeframe and potential damage to their reputation this may cause.

Conclusion

There is uncertainty around what will happen now that the Code is in place. Landowners appear to be in a much less favourable position, it is essential that landowners understand the significance and potential impact of these requests and how they can best protect their interests.