The rollout of UK Electronic Communications Code changes continues one year on
Published on 26th Oct 2023
What impact are new rules that have been introduced since last December having on network operators and site providers?
After the Product Security Telecommunications Infrastructure Act 2022 received royal assent on 6 December 2022, only a limited number of provisions were bought into force. Almost a year on, the remainder of the act has been incrementally coming into force with additional regulations being passed, including most recently provisions on interim arrangements (section 68) and the use of alternative dispute resolution (section 69) which come into force on 7 November 2023.
Other changes are yet to come in; for example, section 67 (unresponsive occupiers) and section 70 (complaints). No timescale has been given on when these can be expected, however.
Provisions already in force
The provisions that are in force were bought in by two separate regulations:
- The Product Security and Telecommunications Infrastructure Act 2022 (Commencement No 1) Regulations 2023. This included section 57 (defining rights under the Electronic Communications Code to share apparatus); section 60 (power to fly lines from apparatus kept by another party); and section 75 (defining the meaning of the Electronic Communications Code), which all came into force on 2 February 2023. It also included section 58 (upgrading and sharing of apparatus: subsisting agreements) and section 59 (upgrading and sharing of apparatus installed before 29 December 2003), which all came into force on 17 April 2023.
- The Product Security and Telecommunications Infrastructure Act 2022 (Commencement No 2) Regulations 2023. This included section 66 (grounds of national security), which came into force on 25 April 2023.
The rollout is not as quick as hoped, with a number of important provisions still yet to be implemented in part or at all.
The new regulation
Most recently The Product Security and Telecommunications Infrastructure Act 2022 (Commencement No 3) Regulations 2023 was made on 18 September 2023 which has brought in further provisions, section 68 (interim arrangements) and section 69 (use of alternative dispute resolution) (ADR). These provisions are set to come into force on 7 November 2023.
Interim arrangements pending Code rights
Section 68 amends paragraph 35 of the Code so will only apply to applications under part 5 of the Code for the termination (paragraph 31) or the modification and renewal (paragraph 33) of existing Code agreements.
The amendments brought in will allow either the operator or site provider to apply for an interim order seeking changes to the terms of the existing Code agreement, pending determination of the full application. The order can be to change any term of the agreement including the financial terms and can provide for the amendment to have effect from the date of the application.
This is a quite a contrast from the existing provisions of paragraph 35 where it is entirely up to the site provider whether there is an "interim" agreement as to the payment of consideration under the existing Code agreement, whether that be that the site provider continues to receive the same consideration or a different payment under that agreement.
The use of ADR
The scope of section 69 will only apply to applications under paragraph 20, 32 and 33. It will not apply to proceedings under paragraph 26.
The purpose of this change is to ensure that both operators and site providers consider the use of ADR procedures to try to reach an agreement on terms where there is an impasse on terms, before making an application to the tribunal. The provision will give either party the ability to give notice to the other at any time stating that it wishes to engage in ADR. The consequences of failing to engage reasonably with this could have adverse consequences for the refusing party, as the tribunal must take into account any unreasonable refusal to engage in ADR when making an order as to costs.
This change will also mean that the notices served under these paragraphs will need to be amended as they must now contain information about ADR. Parties must use template notices approved by Ofcom, who are presently in the process of updating the required notices to address this.
Osborne Clarke comment
Whether the provisions around ADR, which has in any event always been open to both operators and site providers, will drive consensual agreements is to be seen. The fear is that this could instead be used strategically to delay tribunal applications.
Section 68, however, could be considered to be one of the most significant changes to the Electronic Communications Code and should prove useful for operators and site providers alike, enabling the variation of terms swiftly, which should drive the quicker renewal of existing Code agreements.
With that said, whether these changes will achieve better collaboration between site providers and operators or cause further tension and delays in this developing landscape remains to be seen.