< Back to E:gen - August 2015

Power to you?

Thu 27 Aug 2015

The government has signalled its commitment to large-scale reform of existing laws governing telecommunications infrastructure within the first session of the current Parliament. This is potentially a welcome step given the inadequacy of the current legal regime, but it is being treated with caution as it is not yet clear who will benefit…

In July the government issued its report, ‘Fixing the Foundations: Creating a more prosperous nation’, which indicates that the government is placing ‘productivity’ at the heart of its long-term economic growth plan. A key part of this agenda is that providers of electronic communications network (known as ‘operators’) will be required to improve their existing digital infrastructure by promoting network connectivity and expanded coverage across the UK. However, the report recognises that the current regulatory regime – contained in the much-maligned Electronic Communications Code (‘the Code’) – may hinder this requirement.

The Code regulates the relationship between operators and site providers who supply land upon which to base mobile network infrastructure such as cellular masts. It provides the legal framework for operators to construct and maintain their network infrastructure, and to obtain rights over public or private land. However it has been subject to criticism over the past 30 years for being out-of-date, unclear and inconsistent with existing landlord and tenant legislation.

Initial proposals for a new Code were offered in January this year in the draft Infrastructure Bill. However the draft Code was swiftly withdrawn amidst concerns that reforms were being rushed through without sufficient consultation with site providers, operators, land developers and other stakeholders. In the resulting government consultation document, Sajid Javid, the current Business Secretary, highlighted the need for ‘vital’ reform and provision of an updated Code “that works for the 21st century and that supports the provision of electronic communications services well into the future”. The government is advancing this agenda and has already made clear its intention to facilitate the provision of ultrafast broadband and 4G coverage across the UK by ‘reducing regulatory red tape’. Whilst this will potentially produce far-reaching economic and social benefits for UK businesses and communities if implemented properly it is not clear exactly the mechanism by which this will be accomplished, nor is it clear how site providers and land developers will be affected.

The new report only goes so far as to list the consideration of the ‘legitimate interests of all parties’ as a key priority for legislators. It discusses plans to deliver a renewed Code having taken into account views of the relevant stakeholders, particularly site providers and operators with whom the government has now consulted.

Whilst the government’s commitment to ‘make it easier for the market to roll out the fixed and mobile infrastructure that the UK needs’ may suggest that operators will be granted more extensive rights to unilaterally install telecommunications equipment on public or private land, a more coherent Code would likely also be cautiously welcomed by site providers and developers, who have long argued for greater legal clarity.

Following pressure from site providers and operators alike, the government has now consulted on its new proposals, meaning that stakeholders have been given the opportunity to voice their opinions on what form a new Code should take. However, the substantive issue of the content of a new Code presents a greater challenge. For example, addressing the problem of legal inconsistency will mean bringing the Code in line with existing legislation, notably the Landlord and Tenant Act 1954 (which provides security of tenure to business tenants and which often applies to telecommunications leases). The thorny long-standing relationship between existing landlord and tenant legislation and the Code suggests that striking an adequate balance will be a complex task. We can only speculate at this point whether a new Code will be implemented as a separate but similar regime from current legislation, be symbiotically bolted on to it or whether it will take a wholly new approach. The wider government ‘productivity’ aim hints that the Code will have a pro-operator bias, however we have yet to see how the proposals will balance operator interests against the legitimate concerns of site providers and developers.

Whilst the government’s commitment to resolving this enduring legal challenge in a fair and balanced way is an admirable aim, we have yet to see if the impending proposals will crack the Code. 

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