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The New Electronic Communications Code – Code of Practice, Notices & Standard Terms

  • United Kingdom
  • Real estate dispute resolution

12-01-2018

The new Electronic Communications Code (“the Code”) received royal assent on 27 April 2017, as part of the Digital Economy Act 2017 (“the Act”). The Code came into force on 28 December 2017.  
The Code is contained at Schedule 1 of the Act and introduces a new Schedule 3A to the Communications Act 2003.
The Code regulates the legal relationship between landowners and certain network operators. It gives rights to the providers of these networks to install and maintain apparatus in, over and under land. These are commonly known as code rights and apply to the physical equipment that supports the operators network. 
The new Code is intended to clarify the law, give operators clearer rights, greater flexibility in enjoying those rights and is intended to facilitate the sharing of network apparatus. 
The new Electronic Communications Code (“the Code”) received royal assent on 27 April 2017, as part of the Digital Economy Act 2017 (“the Act”). The Code came into force on 28 December 2017.  

The Code is contained at Schedule 1 of the Act and introduces a new Schedule 3A to the Communications Act 2003.

The Code regulates the legal relationship between landowners and certain network operators. It gives rights to the providers of these networks to install and maintain apparatus in, over and under land. These are commonly known as code rights and apply to the physical equipment that supports the operators network. 

The new Code is intended to clarify the law, give operators clearer rights, greater flexibility in enjoying those rights and is intended to facilitate the sharing of network apparatus.

 Under the Code Ofcom was required to:
  • prescribe the form of notice to be given under each provision of the Code that requires a notice to be given;
  • prepare and publish a Code of Practice; and
  • prepare and publish standard terms which may be used in agreements under the Code. 
The publication of these documents followed a consultation published by Ofcom on 24 March 2017 and which closed on 2 June 2017. The publication of the final versions of these documents coincided with the entry into force of the Code.

Is the use of these documents compulsory?

There are a number of template notices which must or may (depending on the circumstances in question) be used by Code operators and landowners/occupiers.

Where the form of a notice is prescribed by Ofcom, paragraphs 88(2) and 89(2) of the Code require that, to be valid, notices given by Code operators and certain notices given by other parties must be in the prescribed form. For example, there is a prescribed form of notice to serve on an operator to bring a Code agreement to an end under paragraph 31(1) of the Code.

However, paragraphs 89(5) and (6) envisage that certain other notices may be given, other than by an operator, in a form other than that prescribed by Ofcom (subject to the party giving the notice bearing the other party’s resulting costs, if any).

The standard terms may (but need not) be used by Code operators and landowners or occupiers when negotiating agreements to confer Code rights. They provide a starting point for negotiations ensuring important terms are not forgotten and can be amended to meet particular circumstances. 

The Code of Practice is non-binding, in the sense that there is no statutory obligation on operators or landowners to comply with its provisions. The Code does not impose legal obligations. Nor is it an authoritative statement of the law: only the courts and tribunals can provide such authority. It is for the court or tribunal (rather than Ofcom) to decide what weight they should attach to the Code of Practice when determining issues regarding the commercial relationship and conduct of the parties and awarding costs. 

What is the purpose and aim of the Code of Practice?

The purpose of the Code of Practice is to set out expectations for the conduct of the parties to agreements made under the Code. It is intended to assist parties in reaching agreement upon a range of issues relating to the occupation of a site. 

As required by paragraph 103(1) of the Code, the Code of Practice deals with: 

  • the provision of information for the purposes of the Code by operators to persons who occupy or have an interest in land; 
  • the conduct of negotiations for the purposes of the Code between operators and such persons; 
  • the conduct of operators in relation to persons who occupy or have an interest in land adjoining land on, under or over which electronic communications apparatus is installed; and 
  • such other matters relating to the operation of the Code as Ofcom think appropriate. 
The Code of Practice does not represent a guide to the Code nor does it replace or supplement its provisions by imposing any new rights or obligations on the respective parties. The Code of Practice is designed to complement the Code by suggesting best practice to facilitate positive and productive engagement between all parties across a range of issues, roles and responsibilities. Whilst the Code of Practice provides some examples of best practice these are not intended to be exhaustive.

What are the main provisions of the Code of Practice?

Central to the purpose of the Code of Practice is the maintenance of good communications between the parties in order to facilitate good working relationships.

The Code of Practice: 

  • provides a reference framework to effective working relationships between the parties;
  • sets out what parties should expect from each other in the context of: establishing new agreements; ongoing operations at existing sites; decommissioning of sites that are no longer required; and the redevelopment of sites;
  • provides a framework for site provision, whereby the commercial process of coming to an agreement, and of maintaining an agreement, can take account of all the practical requirements of both parties; 
  • sets out clear lines of communication through which disputed matters can be escalated; but
  • does not address the financial aspects of the relationship between the parties. 

Looking Forward

There will be the inevitable period of uncertainty as the new version of the Code settles down into practice. Ofcom is likely to take stock after an appropriate period of time to consider the effectiveness of the Code of Practice, notices and standard terms and invite further consultation. The documents are likely to be subject to further refinement to take account of experience of use in practice as a result.  

 

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