Electronic Communications Code in the spotlight (again)

The Electronic Communications Code 2017 has not yet had its first birthday but the government is already intent on changing it.

The Code came into force on December 28, 2017 and governs the relationship between land owners/occupiers on the one hand and most mainstream electronic communications network and infrastructure providers (or operators) on the other.

The Code encourages the installation and upgrading of digital infrastructure by way of commercial negotiation and voluntary agreements, with the imposition of agreements by tribunals as a back-stop option.

Telecoms operators report that many landlords are not responding to requests for access to properties, particularly tenanted properties, making it more difficult to install digital services.

As a result the government published proposals on October 29, 2018 to try to improve the situation and thus to make it easier for commercial and residential tenants to access high quality and reliable broadband. The proposals are

• To amend the Code to place an obligation on landlords to facilitate access to their properties for the deployment of digital infrastructure where a request for the service has been made by the tenant and a communications operator has given the appropriate notice to the landlord.
• If the landlord fails to respond, to give operators the right to apply to the magistrates court two months after first contacting the landlord for a temporary order giving access to install and maintain electronic communications apparatus. The order would remain valid until a voluntary agreement is reached between the parties.

The deadline for responses to the proposals is December 21, 2018.

Footnote: Interestingly the Upper Tribunal, responsible for telecoms disputes, is one step ahead in terms of facilitating access for Code operators. In Cornerstone Telecommunications Infrastructure Ltd v University of London [2018] UKUT 356 (LC), the Upper Tribunal (Lands Chamber) held that its powers to impose an agreement for access under the Code extended to an agreement for interim access to enable an operator to assess a property’s suitability for the installation of electronic communications apparatus.