Spread the word far and wide.

Are you aware that in  April 2017, the Digital Economy Bill received Royal Assent from both Houses of Parliament, and became the Digital Economy Act?

 Amongst other things, the Digital Economy Act reformed the ‘electronic communications code’ by introducing a range of measures to make it easier for network operators to rollout infrastructure (such as phone masts, exchanges and cabinets) on public and private land. 

The reforms to the electronic communications code in the Digital Economy Act are wide ranging and are of particular significance for network operators, landowners and occupiers. 

 Statement on the reformed Electronic Communications Code.

The Code regulates the legal relationship between landowners/occupiers and Code Operators, conferring rights on certain providers of electronic communications networks and systems of conduits (designated by Ofcom as ‘Code Operators’) to install and maintain electronic communications apparatus (including masts, exchanges, cabinets and cables) on public land. The Code also enables operators to apply for a court order to install and maintain apparatus on private land, if they have been unable to reach agreement with the landowner/occupier. 

A bit of background 

At the start of 2015, the Coalition Government tabled amendments to the Infrastructure Bill which, had they been enacted, would have included substantive reforms to the Code10 based on the Law Commission recommendations. These amendments were subsequently withdrawn in the face of stakeholder concerns, to allow further consultation and research to take place. DCMS subsequently published its own Consultation Document in February 2015. 

 The formal consultation period ran for 9 weeks ending on 30 April 2015.

 Following this, DCMS undertook further consultation with all stakeholders, and commissioned independent economic research into the impact of a range of reform options in the market. 

 In May 2016, the Government announced that the Code would be reformed in the forthcoming Digital Economy Bill, “offering major reforms to the rights that communications providers have to access land.”

Ofcom worked with a wide spectrum of stakeholders in developing its initial draft of the Code of Practice. This included representatives from the fixed and mobile operator community, communications infrastructure providers and representatives from the National Farmers Union (NFU), the Country Land & Business Association (CLA), the British Property Federation (BPF) and the Central Association of Agricultural Valuers (CAAV).

 On 28 July 2016 Ofcom held an initial scoping meeting with stakeholders setting out its approach to the Code of Practice drafting process, and invited different stakeholder communities to nominate representatives to serve on a Code of Practice Drafting Group. The membership of this group was subsequently confirmed in September 2016. It was composed of eight specialist practitioners, representing landowners, communications network operators and infrastructure providers.

Was anyone consulted about this process? 

Did any members of the lay public  have a say in this process?

So the British Property Federation spoke on behalf of the public without so much as a consultation? 

This process involved some of the companies  who have been instrumental in pushing this Smart city/5G agenda such as Ariqiva who had control of what was stated in the final documents, such as :Arqiva further stated that drawings should only be provided by exception, where the particular site circumstances necessitate greater control, otherwise there was a risk of undermining the Government’s objective to facilitate future rollout.

Arqiva have even had influence on the wording to protect themselves by coercing Ofcom to change “must” to “should” and “shall” to “ought”.  In other words, giving them an option rather than an obligation.

https://www.ofcom.org.uk/__data/assets/pdf_file/0027/108792/ECC-Statement.pdf

Ofcom Statement

Under the ECC, Ofcom can grant powers to certain companies to allow them to roll out communications infrastructure, such as phone masts, more easily. Companies with these powers are able to construct and maintain electronic communications equipment on public land, and apply to a court for permission to carry out work on private land if agreement cannot be reached with the landowner.

The code itself remains non-binding (i.e. there is no statutory obligation on operators or landowners to comply with its provisions)

 

Statement issued by MobileUK, the Country Land and Business Association, the Royal Institution of Chartered Surveyors and DCMS

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Industry, the landowner community, representative bodies and Government have come together to reaffirm commitments to the ECC and the Ofcom Code of Practice.

MobileUK, the Country Land and Business Association, the Royal Institution of Chartered Surveyors and the Department for Digital, Culture, Media and Sport have issued a joint statement:

The reformed Electronic Communications Code (ECC) came into force in December 2017 with the aim of boosting coverage and connectivity across the UK, through a package of measures which Government expects to deliver significant cost reductions to the sector, while ensuring that landowners receive a fair payment for allowing their land to be used.

Since the new legislation was introduced, there have been problems with negotiations progressing. While some initial uncertainty is to be expected, Government, regulators, the telecoms sector, independent infrastructure providers and the landowner community, recognise the importance of all parties working collaboratively together, both during this transition period and moving forwards.

We are therefore coming together to reaffirm the commitments made to each other in Ofcom’s Code of Practice, and to reiterate our support for the Government’s ambition to be a leading global economy underpinned by world class full fibre network and 5G infrastructure. It is essential that parties engage professionally in open and constructive communications. The future needs of customers and the economy are too important for it to be otherwise.

Minister for Digital Margot James said:

It’s great to see industry and landowners committing to the Electronic Communications Code and backing our ambitions to improve connectivity and ensure Britain is fit for the future. From improving our existing networks to using the next generation of technology, collaboration is vital when it comes to building our digital infrastructure.

The Electronic Communications Code was replaced on 28 December 2017 with a brand new Code, designed to support the rollout of a  telecommunications network throughout the UK,the government has reformed the existing Code and introduced the new Digital Economy Act 2017.

  1. The new Code expands on the rights already granted to telecom operators.
  2. The new automatic rights for operators to upgrade, assign and share the use of apparatus.
  3. Any attempt to prevent or limit this right (for instance by imposing additional payments to the landowners in return for another operator sharing the site) will be void – so landowners cannot even benefit financially from multiple operators sharing their site.Aside from the lack of financial benefit, landowners will also face various practical challenges if operators choose to exercise these rights.  This could include problems with roof overloading if extensive additional kit is installed, security issues with maintenance personnel trying to access parts of their properties and, generally, a feeling of a lack of control over who is occupying their property.

    Valuation

    This links into a wider point about the financial benefit (or lack thereof) for landowners in providing sites to telecom operators.  Compensation and consideration payable by telecoms operators to landowners will now be calculated by reference to the open market value of the land from the perspective of the landowner only.  The value of the land to the operator, which could be quite substantial if it is a strategically important site, is wholly disregarded.

    In practice, this is likely to reduce the rental stream from telecoms agreements, as many of the sites that are the subject of telecoms agreements (typically roof space) will have little intrinsic value to landowners.

    Under the existing Code, landowners are required to give operators just 28 days’ notice if they want to terminate a Code agreement.  The new Code requires a much longer notice period – operators must be given 18 months’ notice just to terminate a Code agreement.

    In addition, in the new Code termination is not the same as removal, and landowners must serve a further notice specifying a “reasonable” period for removal of the apparatus from the site in question.

Barrier Busting

http://Barrier Busting The Government will ensure that it takes a broad view of deployment related matters in order to identify and address the barriers that could stand in the way of the government’s 5G aims. That is why we have set up a new cross-Whitehall task force, led by DCMS, to drive changes to make it easier for digital infrastructure to be rolled out. In respect of the planning system, the Government has been working with industry to assess whether further changes are needed in order to meet the challenges of 5G deployment. 

For the purposes of this code a “code right”, in relation to an operator and any land, is a right for the statutory purposes—

(a)to install electronic communications apparatus on, under or over the land,

(b)to keep installed electronic communications apparatus which is on, under or over the land,

(c)to inspect, maintain, adjust, alter, repair, upgrade or operate electronic communications apparatus which is on, under or over the land,

(d)to carry out any works on the land for or in connection with the installation of electronic communications apparatus on, under or over the land or elsewhere,

(e)to carry out any works on the land for or in connection with the maintenance, adjustment, alteration, repair, upgrading or operation of electronic communications apparatus which is on, under or over the land or elsewhere,

(f)to enter the land to inspect, maintain, adjust, alter, repair, upgrade or operate any electronic communications apparatus which is on, under or over the land or elsewhere,

(g)to connect to a power supply,

(h)to interfere with or obstruct a means of access to or from the land (whether or not any electronic communications apparatus is on, under or over the land), or

(i)to lop or cut back, or require another person to lop or cut back, any tree or other vegetation that interferes or will or may interfere with electronic communications apparatus.

http://www.legislation.gov.uk/ukpga/2017/30/schedule/1

The operator may apply to the court for an order under this paragraph if—

(a)the relevant person does not, before the end of 28 days beginning with the day on which the notice is given, agree to confer or be otherwise bound by the code right, or

(b)at any time after the notice is given, the relevant person gives notice in writing to the operator that the person does not agree to confer or be otherwise bound by the code right.

(4)An order under this paragraph is one which imposes on the operator and the relevant person an agreement between them which—

(a)confers the code right on the operator, or

(b)provides for the code right to bind the relevant person.

21(1)Subject to sub-paragraph (5), the court may make an order under paragraph 20 if (and only if) the court thinks that both of the following conditions are met.

(2)The first condition is that the prejudice caused to the relevant person by the order is capable of being adequately compensated by money.

(3)The second condition is that the public benefit likely to result from the making of the order outweighs the prejudice to the relevant person.

(4)In deciding whether the second condition is met, the court must have regard to the public interest in access to a choice of high quality electronic communications services.

(5)The court may not make an order under paragraph 20 if it thinks that the relevant person intends to redevelop all or part of the land to which the code right would relate, or any neighbouring land, and could not reasonably do so if the order were made.

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