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Landowners, operators recommit to Electronic Communications Code

UK landowners, telecommunications operators and the government will work collaboratively to implement the revised Electronic Communications Code ('new Code') and deliver the UK's digital connectivity ambitions.08 Aug 2018

Trade bodies for landowners and operators, along with the Department for Culture, Media and Sport (DCMS), have issued a joint statement reaffirming their commitments to the new Code and Ofcom's related code of practice. The statement was issued after a meeting between the various different bodies, convened to address tensions that have arisen since the new Code came into force in December 2017.

The statement "recognise[s] the importance of all parties working collaboratively together, both during this transition period and moving forwards", and commits the parties to "engage professionally in open and constructive communications". Signatories include DCMS, the Country Land and Business Association (CLA), the Royal Institution of Chartered Surveyors (RICS) and MobileUK, the trade body for the UK's mobile network operators.

"It's great to see MobileUK, the CLA and RICS committing to the Electronic Communications Code and backing our ambitions to improve connectivity and ensure Britain is fit for the future," said digital minister Margot James. "From improving our existing networks to using the next generation of technology, collaboration is vital when it comes to building our digital infrastructure."

The Electronic Communications Code governs the relationships between landowners and operators of electronic communications services licensed by Ofcom. It gives operators certain rights to install, inspect and maintain electronic communications apparatus including masts, cables and other equipment on public and private land, even where the operator cannot agree the necessary rights with the landowner.

The Digital Economy Act introduced a new Code, effective from 28 December 2017 and intended to support the government's vision for the UK's digital future. The new Code is complemented by an Ofcom Code of Practice (13-page / 200KB PDF) which governs how operators and landowners should interact with one another over the installation, maintenance and upgrade of electronic communications infrastructure and encourages a collaborative approach between the parties.

The new Code is aimed at boosting digital coverage and connectivity across the UK, through a package of measures which the government expects will deliver significant cost reductions to the telecoms sector while ensuring that landowners receive fair payment for the use of their land. Among other measures, the new Code restricts the ability of landowners to charge premium prices for the use of their land by basing rent rates on the underlying value of the land. It also makes it easier for operators to upgrade and share equipment such as masts or cables without having to pay landowners extra.

Property telecoms at Pinsent Masons, the law firm behind Out-Law.com, described the joint statement as "encouraging". However, it was unlikely to completely mitigate the "inevitable transitional difficulties" that would be faced by both landowners and operators when applying the new Code, given the opaque drafting of some of the statutory provisions.

"We are already seeing many references – 11 registered as at 6 August 2018 - being made to the Upper Tribunal (Lands Chamber) over various issues including important interpretation points, and it is only once we have the guidance and backing of the Upper Tribunal on key matters such as the imposition test, consideration and compensation value and sharing and upgrade rights that we will really move towards delivering the aim of boosting coverage and connectivity across the UK," said Pierre Smith of Pinsent Masons.

James Lilley of Pinsent Masons agreed that "almost nine months after the new Code came into force, significant questions remain in relation to how it is to be interpreted and the extent to which the legislature intended the new Code to turn the 'market' which has developed under the previous Electronic Communications Code on its head".

"Until the Upper Tribunal (Lands Chamber) and/or the government issues further guidance, or sufficient precedent is developed to establish the new 'market', a divide between landowners and operators is unfortunately unavoidable - particularly in relation to the level of remuneration due to landowners for the use of their land by operators, as well as how the new Code is meant to operate," he said.