The Electronic Communications Code: An update on reform

News - 10/11/2015

 

In February 2013 the Law Commission published its report for reform of the Electronic Communications Code (https://www.lawcom.gov.uk/wp-content/uploads/2015/03/lc336_electronic_communications_code.pdf).

These early awaited proposals were intended to address the shortcomings of the existing regime, which has attracted criticism from all corners of the industry and infamously described judicially as “not one of Parliament’s better drafting efforts … one of the least coherent and thought-through pieces of legislation on the statute book”.

3 years on and the legislation remains on the statute book.

In this article, our telecoms litigation expert at Morrisons, Graham Halsall (https://www.morrlaw.com/team/graham-halsall/) reviews the current position on telecoms reform and looks ahead to future.

The beginning

The year was 1984. It was the year that witnessed the birth of the FTSE 100, Prince Harry, Virgin Atlantic and Thomas the Tank Engine. Miners were on strike and Frankie Goes To Hollywood was at number 1.

It was also in this year the Telecommunications Act was enacted and the Electronic Communications Code became law. The Code (as it is known) was contained in Schedule 2 of the Act.

Like many things from the 80s, the Telecommunications Act fell quickly out of date and most of it has been repealed and replaced with a modern day equivalent. However, the Code lives on and, save for a botched facelift in 2003, it remains largely unchanged and continues to govern the legal relationships between landowners and network operators.

Crucially, the Code purports to give operators the right to compulsory acquire rights over public or private land for the purposes of operating a telecoms network. In turn, it gives landowners the right to claim compensation and consideration.

The underpinning principle of the Code is enshrined in the oft quoted mantra, “no person should unreasonably be denied access to an electronic communications network”. It is a principle that is so vague and incapable of logical application that, in over 30 years, there are no reported cases of an operator having exercised its compulsory purchase rights. Instead, rights have been acquired by leases, licences, handshakes (or none of the above).

Such agreements (often unbeknownst to the landowner) had the apparent effect of conferring an additional layer of statutory protection on the operators which made it notoriously difficult (but not impossible) to evict an operator at the end of the agreement. Traditionally, disputes would arise when it came to enforcing the removal of the operator from the land. More recently, with the industry focussing on network consolidation, disputes tend to arise out of the sharing of network infrastructure. All of this makes for a fantastic mess which the Code is ill-equipped to deal with.

Operators despise the Code because it is not appropriate for modern day telecoms needs and landowners despise the Code because……well…..it’s despicable.

The need for change

So when the Law Commission published it proposals for reform, there was, broadly speaking, uniform enthusiasm from both camps. The keys changes were:-

• The existing Code would be scrapped and replaced by a new more balanced and technology neutral Code.

• The security of tenure afforded by the Landlord and Tenant Act 1954 (“the Act”) would cease to apply to a telecoms lease.

• Landowners would be entitled to claim a market price for the use of their land by operators.

• There would be a new legal test for determining the imposition of Code rights upon a landowner and this would be determined the Lands Chamber of the Upper Tribunal.

• Operators would have automatic, but limited, rights to share and upgrade their equipment.

• There would be clearer provisions about what happens to apparatus after an agreement with a Landowner has expired.

All of this seemed rather encouraging, but nothing has really happened since then.

The future

In January 2015, there was a vague attempt to rush the changes through in an awkwardly placed schedule to the Infrastructure Bill. Those efforts were ultimately abandoned.

The incoming Government has since published a consultation paper on the proposed new Code. The consultation closed on 30 April 2015 and the responses are under review. In July 2015, the Government then announced its intention to introduce legislation in the first session of Parliament to reform the Code.

For the time being, it appears that the Government is committed to Code reform. However, we still do not know when that is likely to take place or what form it will take.

Therefore, 30 years after Frankie told us all to relax, we are still stuck with the Code and the tribal war between operators and landowners rubbles on…..

Graham Halsall is a Partner in Morrisons Property Litigation team and a leading expert in the field of property related telecoms disputes. If you have any questions arising out this topic, please contact:

Graham Halsall

Direct Line:       01737 854577
E-mail:             [email protected]

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Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.