New Electronic Communications Code can transform rural connectivity, says expert

Out-Law News | 18 May 2016 | 12:44 pm | 4 min. read

Proposed new rules for governing the installation and maintenance of electronic communications infrastructure, such as mobile phone masts, can help to transform connectivity in rural parts of the UK, an expert has said.

Property dispute resolution specialist Alicia Foo of Pinsent Masons, the law firm behind Out-Law.com, said plans for a new Electronic Communications Code (22-page / 450KB PDF), published by the UK government on Tuesday, "recognise that the provision of electronic communications is as important to that of utilities such as water or gas".

"No doubt there will be some disgruntled landowners across the UK who will see existing profitable income sources significantly reduced by these measures," Foo said. "However, as we strive to adapt to an era in which connectivity is deemed a critical aspect of day-to-day life the revamped code could hopefully be transformational for those living in remote parts of the UK."

"Until now electronic communication providers have often complained the land access and rental regime has been a significant barrier to connectivity giving landowners the power to charge market or in some cases higher than market rents to access, deploy and maintain their infrastructure and equipment. This regime is outmoded and has been severely limiting in the pursuit of UK-wide connectivity," she said.

According to the proposals, the freedom landowners currently have to charge what they like for the rental of their property by telecoms network providers and operators will be restricted. Rents will in effect be regulated based on the underlying value of the land. The interest telecoms companies have in the land will not be relevant to the level of rent.

Property law expert Ian Morgan of Pinsent Masons said that landowners are unlikely to welcome the changes as it may stop them charging a premium price for sites shared with multiple occupiers. He said telecoms companies will likely be happier with the planned arrangements but will want to see how the valuation regime will work in practice.

"Overall this should bring costs for operators down allowing for greater investment by operators in things like superfast broadband and improving DAB and mobile coverage in rural areas – reducing the number of ‘not spots’," Morgan said.

The new code will also make it easier for telecoms companies to upgrade and share their equipment, such as masts or cables. Telecoms companies will be able to exercise this rights "without prior agreement or payment to site providers", subject to some protections that will exist for landowners.

Landowners might be able to block upgrades if the works would cause more than "minimal adverse visual impact" or if the proposed work would place an "additional burden" on them. Morgan said disputes could arise between telecoms companies and landowners as to the extent of any adverse visual impact of works and over whether works place new burdens on landowners.

Disputes in relation to the new code will be heard by specialist tribunals. The government hopes this will help to speed up the time it takes to resolve disputes and lower costs, as well as cut any delays to the installation of telecoms infrastructure.

"Whether this is going to work will depend upon the amount of training that is given to tribunal judges who may be unfamiliar with the issues and whether the tribunals are properly funded," Morgan said. "The quality of the tribunals’ decision making has in other contexts been questioned – making it potentially more of a lottery depending on which tribunal judge you get on the day."

The new code will only apply to new agreements when it comes into force. The government said it intends to introduce the code through "primary legislation at the earliest possible opportunity". Businesses will be unable to use contract terms to avoid the statutory obligations outlined in the code.

"It won’t be plain sailing from here," Foo said. "The new code will not be retrospective in effect. Transitional plans are yet to be revealed with the prospect of parallel regimes under the new and old code applying with the different charging, upgrading and sharing regimes. Electronic communication providers and landowners will look to government to clearly define the parameters of the new measures and how changes will be implemented efficiently."

The government was forced to withdraw its previous plans to introduce a new Electronic Communications Code through the Infrastructure Bill that was passing through parliament at the time. Those proposals were met with criticism from telecoms operators and landowners who also expressed concern at the reforms being rushed through parliament.

Opposition MPs had threatened to vote against the passing of the Infrastructure Bill if the provisions relating to the Electronic Communications Code were not removed from the Bill and fully consulted on. The government opened a consultation on a new code in March 2015 and is now set to implement reforms through new legislation.

UK minister for the digital economy Ed Vaizey said: "The overall package of reforms being put forward strikes the right balance of interests between site providers, communications providers and, most importantly, the public interest in ensuring communications services meet the needs of UK citizens in the digital era. The whole of the UK will benefit from the long-term reforms put in place by the new code as investment in digital communications infrastructure is made easier, leading to a more sustainable, robust and technologically advanced physical network."

"The reform of the Electronic Communications Code, therefore, forms a key pillar of the government’s digital strategy. It builds on our reforms to the planning regime to support the mobile industry in their rapid rollout of 4G technology and helps the industry to meet their legally binding obligations to improve coverage across the UK. Moreover, this reform sits alongside and complements our commitment to deliver a universal service obligation for broadband, and the enormous progress we have made on the deployment of superfast broadband. Together, these policies demonstrate our unwavering commitment to a world class digital infrastructure that supports the UK as the world’s leading digital economy," he said.

The proposals were, however, criticised by the Country Land and Business Association (CLA) as "poorly thought through" and unfair.

CLA president Ross Murray said: "Ministers have announced a massive concession to mobile industry dressed up as a measure necessary for consumers…The rushed and confused changes in the law risk creating confusion and mistrust among landowners that had previously been keen to assist mobile companies in locating mobile masts."