Further changes to the Electronic Communications Code
January 21, 2020
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The Government gave their response to the consultation regarding Code Operators’ ability to seek Code Rights 10 October 2019. This has resulted in the Telecommunications Infrastructure (Leasehold Property) Bill being introduced to Parliament on 15 October 2019. It has it’s first reading in the House of Commons on 8 January 2020.
The Code already provides for operators to apply to the Upper Tribunal (Lands Chamber) for Code Rights where they have been unable to agree these with the Landlord. However, it is a costly and lengthy procedure. This has resulted in it not being widely used, with operators instead removing problem areas from their development plans, with the risk that this may mean that coverage in some areas is left behind. The consultation found that in the initial deployment programmes for Gigabite-Capable Broadband, in 40% of cases request for access to apartment buildings never received any response.
The Bill provides a process for operators to gain access to apartment buildings to deploy, upgrade or maintain fixed-line broadband connections, where a tenant has requested the service, but the Landlord has repeatedly failed to respond to requests for access.
This is a key area for the Government following the publication of the Future Telecoms Infrastructure Review in July 2018 that suggested that the UK was falling behind in the roll-out of Gigabit-Capable Broadband.
The Bill aims to provide operators with a fast and cheap option to obtain interim Code Rights from the Upper Tribunal (Lands Chamber) where
(1) A tenant requests the service;
(2) The operator cannot provide the service without Landlord agreement; and
(3) The Landlord has repeatedly failed to respond to formal notices seeking Code Rights.
The interim rights proposed will last for eighteen months. To go beyond that period, there must either be an agreement with the Landlord or a return to the Tribunal to have the rights imposed by the existing Code Procedures.
The Code tries to strike a balance between operators and Landlords, though neither side seems satisfied with the current position. For operators, the Code does not go far enough in allowing them to install their apparatus in the best positions. For landowners, the Code infringes on their right to enjoy their property and have control over it. The biggest concern for landowners is that, if they allow equipment to be installed on their land, it becomes very difficult to have it removed, particularly when required for redevelopment. However, with the introduction of the new Bill, it seems increasingly unlikely that ignoring operators’ requests will be a viable option for preventing them from installing apparatus.
The current changes proposed relate to residential buildings. However, there is an indication from the Government that further legislation may be considered if the situation on connectivity does not improve.