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Ofcom code seeks smooth relationships between telecoms operators and landowners

The UK's telecoms regulator has published plans to govern how telecoms operators and landowners should interact with one another over the installation, maintenance and upgrade of electronic communications infrastructure.27 Mar 2017

However, the proposals, if introduced in current form, would be too favourable towards landowners and could hold up the roll out of modern telecommunications networks that the UK needs, an expert has said.

Ofcom's proposals (128-page / 828KB PDF) are intended to complement a new Electronic Communications Code (ECC), which is close to being finalised in the UK parliament. The new ECC, which would govern how mobile phone masts and other telecoms infrastructure could be deployed, is contained in the Digital Economy Bill, which is still making its way through parliament.

Ofcom is obliged, under the Bill, to set out a code of practice to sit alongside the new ECC, as well as template notices and standard terms that operators and landowners can use when engaging with one another on ECC issues.

The code of practice would be non-binding, but Ofcom said that it would expect operators and landowners to "act in accordance with the principles" the code sets out, and said that "courts may take account of compliance with relevant codes of practice when assessing conduct in awarding costs".

Included within the draft code of practice are steps that telecoms operators and landowners can expect one another to take, and information they can expect to be provided with, when putting in place agreements for the installation of apparatus, access to and operation, maintenance and upgrading of existing sites and apparatus, and the decommissioning of sites no longer in use.

The draft code refers to how operators and landowners should interact throughout the different stages of infrastructure deployment, from initial site surveys, to consultation on the type of infrastructure to be installed, and the carrying out of works.

According to the proposals, landowners should provide operators with details of how land is used, who owns or occupies it, and whether there are drains, pipes or cables, harmful materials, or protected fauna, among other features, on the land that operators should know about to inform their site surveys.

Under the draft code, operators would be encouraged to share information such as their proposed designs, access routes and cable routes, loading calculations for rooftop sites, and proposals for electricity provision with landowners when finalising contracts for installation of new equipment.

Ofcom's draft code also set out what operators can expect from landowners when they need emergency access to sites to repair equipment, as well as what landowners can expect from operators in terms of verifying the identity of engineers and the purpose of their work on-site and the steps they will take to safeguard landowners' property, such as livestock.

The draft code is open to consultation until 2 June.

Property dispute resolution specialist Alicia Foo of Pinsent Masons, the law firm behind Out-Law.com, said: "Traditionally, relations between landowner and electronic communications operators/infrastructure providers have been strained, so the intention behind the collaborative 'positive and productive engagement between all the parties across a range of issues, roles and responsibilities' the draft code of practice is seeking to foster is to be applauded. It remains to be seen whether such laudable intentions can be sustained given the non-binding nature of the code of practice or whether the parties will merely revert to type."

Ian Morgan, property law expert also of Pinsent Masons, said that Ofcom's proposals may favour landowners more than telecoms operators.

"The government was clear when they proposed reform to the Electronic Communications Code – it was to 'to enable long-term investment and development of digital communications infrastructure in the 21st century'. While the consultation around the code of practice is to be welcomed, if implemented in its current form, the code of practice is in danger of swinging the pendulum back too far in favour of landowners who will be able to use it to challenge operators at every stage. This is due to its very wide-reaching expectations around consultation and information sharing with landowners."

"This would undermine a key purpose for which the Electronic Communications Code was introduced – the quicker and easier roll out of infrastructure. Of course the real test will be whether, being non-binding guidance, Ofcom’s voice will get drowned out by the wishes of powerful industry players," Morgan said.