The Electronic Communications Code: What You Need to Know

If you are a UK landowner or network operator, you may have heard of the Electronic Communications Code (the Code). But what is it, and how does it affect you? In this blog post, I will explain the main features of the Code, its recent reforms and some practical examples of how it works in practice.

What is the Code?

The Code is a set of rights and obligations that apply to electronic communications network operators and site providers. It is set out in Schedule 3A of the Communications Act 2003 and was revised by the Digital Economy Act 2017. The Code allows network operators to install and maintain electronic communications apparatus (such as cables, masts, and antennas) on, under or over land, subject to certain conditions and safeguards. The Code also regulates the terms and conditions of agreements between network operators and site providers, including the payment of consideration (or rent) and compensation.

Why is the Code important?

The Code is important because it provides the public with electronic communications services (such as broadband, mobile internet, telephone, cable television, and landlines). These services are essential for social and economic development, especially in rural areas with limited coverage. The Code aims to balance network operators’ interests, who need land access to deploy and upgrade their networks, and site providers, who own or occupy the land where the apparatus is located.

What are the main changes introduced by the revised Code?

The revised Code was enacted on 28 December 2017 and introduced several changes to the previous regime. Some of the main changes are:

A new test for imposing Code rights: The court can only impose Code rights on a site provider if two conditions are met: (a) the prejudice caused to the site provider can be adequately compensated by money, and (b) the public benefit from granting the rights outweighs the prejudice to the site provider.
A new basis for calculating consideration: The consideration payable by a network operator to a site provider is based on the market value of the site provider’s agreement to confer or be bound by Code rights, disregarding any additional value generated by the network operator’s intention to use the land for providing electronic communications services. This means that consideration is likely to be lower than under the previous regime, which was based on the open market value of the land.
New rights for network operators to upgrade and share apparatus: Network operators can upgrade or share their apparatus with other network operators without requiring additional consent from the site provider or paying further consideration, as long as this does not impose an extra burden on the site provider.
New termination procedure: Site providers can terminate a Code agreement by giving at least 18 months’ notice to the network operator and specifying one of four grounds: (a) substantial breaches by the network operator; (b) persistent delays in paying consideration; (c) redevelopment of the land; or (d) no longer having an interest in or right to occupy the land. The network operator can challenge the termination notice in court if it disputes the ground or wishes to renew the agreement.
New removal procedure: Site providers can require network operators to remove their apparatus from the land by giving at least 18 months’ notice. The network operator can either remove the device or seek a new agreement or a court order to retain it. If the network operator fails to remove its apparatus within a reasonable period after termination or expiry of a contract, the site provider can sell, use or dispose of it.

How does the Code work in practice?

To illustrate how the Code works in practice, here are some hypothetical examples:

Example 1: A network operator wants to install a new mast on a farmer’s field to improve mobile coverage in a rural area. The farmer agrees to grant Code rights to the network operator for ten years, subject to an annual consideration of £5,000 and compensation for any damage caused by the installation or maintenance of the mast. The parties enter into a written agreement that complies with the requirements of the Code.
Example 2: A network operator has an existing agreement with a landlord to install a cabinet on his property that houses fibre optic cables. The contract was entered into before 28 December 2017 and fell under the old regime. The network operator wants to upgrade its cabinet to increase its capacity and share it with another network operator. The landlord refuses to consent to these changes and demands a rent increase. The network operator cannot rely on its new rights under the revised Code to upgrade and share its cabinet without consent or additional payment, as these rights only apply to agreements made after 28 December 2017. The network operator must negotiate with the landlord or seek a court order to vary or replace its existing contract.
Example 3: A network operator has a Code agreement with a homeowner to install a satellite dish on his roof. The agreement expires after five years. The homeowner gives 18 months’ notice to the network operator to terminate the contract and remove the dish. The network operator does not respond to the notice or remove the dish within a reasonable period after the expiry of the agreement. The homeowner can sell, use or dispose of the dish as he sees fit, subject to giving 28 days’ notice to the network operator and accounting for any proceeds of the sale.

Where can I find more information?

If you want to find out more about the Code, you can visit the following websites:

Alternatively, you can contact me for professional advice. I have specialised in telecommunications for many years, alongside my broader solicitor’s practice. I can advise on all areas of telecommunications law.

Geoffrey Caesar, Solicitor