Changes To The Electronic Communications Code 2017

On 27 January 2021 the Department for Digital, Culture, Media and Sport announced a consultation on changes to the Electronic Communications Code 2017 (“the new Code”).

The new Code has now been in force for a little over three years and was intended to support faster and easier deployment of electronic communications infrastructure on both private and public land. It is fair to say though that things have not been plain sailing: the old Code, first introduced by the Telecommunications Act 1984 came before the courts only a half a dozen times in thirty years but in contrast, the new Code has produced a steady stream of litigation and it appears that the new Code is not succeeding in its stated aim in a number of respects.

The theme of the consultation is to encourage prompt and collaborative negotiations for both new and renewed agreements and is intended to address the issues which have arisen in three main problem areas:

• Issues relating to obtaining and using Code agreements: the changes to valuation procedures introduced by the new Code have made Code agreements significantly less attractive to site providers and as a result negotiations have become difficult and protracted. The consultation looks at changes to support faster negotiations and more efficient ways to resolve disagreements over terms.
• Rights to upgrade and share: the new Code introduced automatic rights for operators to upgrade and share equipment but these rights have proved difficult to interpret and disagreements over the extent are prolonging negotiations. The consultation proposes changes to clarify these rights and also considers the introduction of limited retrospective rights in relation to agreements entered into before the new Code came into force.
• Difficulties specifically relating to the renewal of expired agreements: the consultation seeks to address a lack of clarity and consistency in the way part 5 of the new Code applies to expired agreements and the perception that the current legislation does not encourage prompt negotiations for renewal agreements.

The consultation does not set out detailed proposals for reform in these areas but rather sets out a range of potential solutions and seeks feedback to inform the Government’s decision on the scale and scope of any alterations to the new Code.

The consultation closes on 24 March 2021 and the response to the consultation will set out the Government’s proposal for any legislative reform. We will be monitoring developments closely and reporting further on the Government’s proposals as they emerge.