Express your views on the proposed new electronic communications code

The Department for Culture Media and Sport (DCMS) has published a consultation on reforming the existing Electronic Communications Code – the legislative framework that regulates the relationship between telecoms operators and landowners who provide sites for the installation of telecoms apparatus. The consultation seeks views on a revised code which is now set out in a stand-alone draft Bill. This follows the Government's unsuccessful attempt, in January 2015, to introduce the revised code as an amendment to what was then the Infrastructure Bill (see also our previous e-bulletin here).

As described in our previous e-bulletin, various stakeholders made representations to DCMS on issues relating to the practical application of the revised code. This consultation seeks to address these issues and in particular invites specific responses to a broad range of questions on the following themes:

• the definition of land and ownership of property; this section looks at the meaning of the word "land" for the purposes of the revised code and the important question of whether apparatus affixed to land could be classed as land itself. Different definitions achieve different outcomes including the possibility of a change of the ownership of the apparatus. Clearly this is a fundamental concept.
• how consideration is to be determined; this section deals with proposals to reform the basis for valuing payment of code rights. The Government's Impact Assessment states that the proposed changes to the wayleave valuation regime could lead to a 10% reduction in wayleave payments from operators to site providers. This is expected to result in site providers' revenue payments decreasing by £30m pa (with an equivalent cost saving for operators). A key driver for this reform is DCMS's perception that in some instances site providers "exploit a unique site position to secure rental values significantly above market rates". This issue is considered in more detail in our Briefing here.
• upgrading and sharing apparatus; unlike the existing code, the revised code contains an automatic power for operators to share and upgrade their apparatus without requiring the consent of or further payment to the site provider, provided certain conditions are met. Our Briefing provides more details.
• contracting out of the revised code; this section deals with whether or not it should be possible to contract out of the revised code and considers how the contracting out provisions might impact on the ability to secure sites and enable network role out.
• the role of land registration; this section seeks views on the complex question of whether code rights should be registered under land registration legislation so that future purchasers of land are able to find out whether the land is subject to code rights. It also examines the consequences of failure to register code rights.
• transitional arrangements, savings and retrospectivity; when the revised code is brought into force, it will repeal the existing code. The Government takes the general view that the revised code will only apply to new agreements and that it will not apply retrospectively to arrangements made under the existing code. So this section seeks views on what transitional arrangements might be appropriate and whether they should be left to secondary legislation or included on the face of the draft Bill.

Comment

The Government's vision is for a robust and effective revised code which strikes the right balance between all parties involved. This approach is considered essential if Government is to provide a legal framework that enables the effective delivery of network and coverage expansion and thus the provision of high-quality communications services for consumers. Site owners and operators should now consider and respond to the consultation to ensure that the revised code takes account of their contrasting interests. There is no obligation to answer all the questions and respondents are free to answer only those on which they have a view. Views on other areas of the revised code (that go beyond the questions set out in the consultation paper) are also invited. DCMS says it particularly welcomes comments on whether the revised code provisions will allow for innovations in how apparatus could be shared or re-used in future. The closing date for responses is 30 April 2015.

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